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UNIVERSITY  of  CALJFORNU 

AT 

LOS  ANGELES 

LIBRARY 


CASES 


ON 

INTERNATIONAL     LAW 

SELECTED    FROM    DECISIONS    OF 

ENGLISH  AND    AMERICAN   COLRTS 

EDITED 

WITH   SYLLABUS   AND   ANNOTATIONS 

BY 

JAMES    BROWN    SCOTT 

A.M.  (harvard),  j.u.d.  (heidelberg) 

DEAN    OF    THE    COLLEGE    OF    LAW,    UNIVERSITY    OF    ILLINOIS 


"  War  and  Peace  divide  the  business  of  the  world  " 

Dk.  Johnsox 


BASED   ON   THE   LATE   DR.    FREEMAN   SNOW'S  CASES  AND  OPINIONS 
ON  INTERNATIONAL  LAW 


BOSTON 
THE     BOSTON     BOOK     COMPANY 

ILafaj  i3ublisl)rrs  anil  ISoohsclUrs 
1902 


c)482 


Copyright,  1902 
By  The  Boston  Book  Company 


UNIVERSITY  PKESS    •     JOHN   WILSON 
AND    SON       •     CAMBKIUGE,    U.  S.  A, 


±4v>S 


TO 

ANDREW    SLOAN    DRAPER,   LL.D. 

PRESIDENT  OF  THE  UNIVERSITY  OF  ILLINOIS 

FORMERLY   JUDGE    OF   THE   COURT   OF    COMMISSIONERS  OF   ALABAMA  CLAIMS 

A    PRUDENT   COUNSELLOR,     A    LOYAL    FRIEND 

THE    SOUL    OF    HONOR 


PREFACE. 


The  present  book  was  intended  to  be  a  revision  of  the  late  Dr. 
Snow's  Cases  and  Opinions  on  International  Law,  published  in 
1893.  The  changes  made  in  the  course  of  revision  were,  however, 
so  many  and  so  radical  that  it  seemed  advisable  to  the  publisher 
to  issue  it  as  an  independent  work,  and  it  so  appears.  The  arrange- 
ment closely  follows  Dr.  Snow's ;  in  fact,  it  is  identical  with  it  in 
most  respects.  His  text  has  been  utilized  so  far  as  possible ;  his 
notes  have  generally  been  retained  and  enlarged,  and  the  Syllabus 
has  been  tlioroughly  revised  and  remade.  Much  of  the  merit  —  if 
any  there  be  —  justly  belongs  to  Dr.  Snow,  but  the  present  editor 
is  responsible  for  the  undertaking  as  a  whole. 

The  idea  underlying  this  volume  is  that  international  law  is 
part  of  the  English  common  law ;  that  as  such  it  passed  with  the 
English  colonists  to  America;  that  when,  in  consequence  of  a  suc- 
cessful rebellion,  they  were  admitted  to  the  family  of  nations,  the 
new  republic  recognized  international  law  as  completely  as  inter- 
national law  recognized  the  new  republic.  Municipal  law  it  was  in 
England ;  municipal  law  it  remained  and  is  in  the  United  States. 
Xo  opinion  is  expressed  on  the  vexed  question  whether  it  is  law  in 
the  abstract ;  our  courts,  State  and  Federal,  take  judicial  cognizance 
of  its  existence,  and  in  appropriate  cases  enforce  it,  so  that  for  the 
American  student  or  practitioner  it  is  domestic  or  municipal  law. 

If  English  and  American  courts  of  justice  enforce  international 
law,  and  have  repeatedly  done  so  in  the  past  two  centuries,  there 
must  be,  and,  in  fact,  there  is,  a  mass  of  judicial  decision  on  this 
subject.  There  should  be  the  same  reason  for  respecting  precedent 
in  this  as  in  other  branches  of  the  law ;  and  beyond  doubt  in  suits 
involving  a  question  of  international  law  a  case  in  point  is  cited 
and  followed,  unless  overruled  or  distinguished  from  the  case  under 
consideration.  Judicial  decisions,  then,  are  an  important  and 
indispensable  source  of  authority  in  international  law. 


VI  PREFACE. 

It  is  the  judgment  that  is  authoritative,  although  the  obiter  dictum 
of  a  distinguished  judge  is  entitled  to  respect.  The  opinion  of  a 
text-book  writer  is  valuable  ;  but,  like  the  dictum,  it  is  not  in  itself 
law.  It  is  at  best  a  statement  of  the  underlying  principle  of  the 
law  or  a  digest  or  summaiy  of  cases  on  the  subject  with  which  the 
text-book  deals.  The  opinions  of  diplomats  likewise  carry  great 
weight;  but  the  diplomatist  does  not  and  cannot  consider  the  ques- 
tion at  issue  with  the  impartiality  of  a  judge,  for  he  is  influenced 
by  the  interests  of  his  country. 

For  these  reasons  the  cases  here  printed  have  been  selected 
from  the  reported  decisions  of  English  and  American  courts ;  and 
opinions  of  text- book  writers  and  extracts  from  diplomatic  corre- 
spondence, though  cited  in  the  Syllabus  and  foot-notes,  do  not 
appear  in  the  text. 

The  purpose  of  the  Syllabus  is  to  round  out  the  principles  devel- 
oped and  established  in  the  text.  It  cites  the  cases  and  also  refers 
to  the  authoritative  writers  of  England,  America,  and  the  conti- 
nent. In  this  way  not  only  the  international  law  of  the  courts,  but 
even  matters  of  comity  and  ceremony,  are  treated.  References  are 
made  in  well-nigh  every  section  to  Bonfils  (1901)  and  to  Rivier's 
French  (1896)  and  German  (1899)  treatises  ;  and  very  frequently 
to  Calvo,  Heffter,  and  Liszt. 

To  Bonfils'  treatise,  of  which  the  third  and  last  edition,  admir- 
ably edited  by  M.  Fauchille,  appeared  in  1901,  the  references  are 
to  sections,  so  that  they  are  applicable  to  any  edition.  This  work, 
a  masterpiece  as  to  conception  and  execution,  is  peculiarly  rich  in 
references  to  continental  literature  in  book  and  magazine  form. 
The  same  remark  applies  to  Rivier's  French  and  German  treatises, 
and  in  a  less  degree  to  Liszt's,  of  which  a  second  edition  appeared 
in  1902.  Rivier,  a  French  Swiss,  recognizes  the  importance  of  the 
German  authorities,  and  is  not  affected  by  the  prejudice  of  nation- 
ality. Liszt  naturally  refers  to  the  latest  and  leading  German 
authorities,  and  it  is  for  this  reason  that  German  works  and  treat- 
ises— for  example,  v.  Holtzendorff's  "  Handbuch  des  A'olkerrechts" 
—  are  not  specifically  referred  to  in  the  Syllabus.  For  the  maga- 
zine literature  of  the  English-speaking  world,  citations  are  given 
to  Jones'  Index  to  Legal  Periodicals,  2  vols.  (1887,  1899). 

It  is  hoped,  therefore,  that  the  l)ook  will  serve,  not  only  as  a  text 
for  present,  but  also  as  a  guide  for  future  study. 


PREFACE.  Vii 

111  conclusion,  the  writer  wishes  to  thank  Professor  Beale,  of  the 
Harvard  Law  School  for  his  generous  permission  to  use  a  section 
from  his  "  Cases  on  the  Conflict  of  Laws  ; "  and  he  desires  espe- 
cially to  thank  his  friend  and  pupil,  Wesley  E.  King,  Esq.,  of  the 
Champaign  (111.)  bar,  and  his  colleague,  William  C.  Dennis,  Esq., 
for  valuable  help  in  the  preparation  of  the  Syllabus. 


JAMES    BROWX    SCOTT. 


University  of  Illinois, 
October  15,  1902. 


TABLE    OF    CONTENTS. 


PAGE 

Table  of  Cases        xiii 


Syllabus 


INTRODUCTION. 

§  1.  International  Law  is  a  Part  of  the  Municipal  Law  of  States      ...  1 

PART   I. 

International  Relations  in  Tijme  of  Peace. 

CHAPTER   L 

STATES  —  TERRITORIAL    RIGHTS. 

§  2.      (a)  Definition  and  Character  of  Sovereign  States 23 

(b)  Recognition  of  the  Existence  of  a  State 37 

(c)  Kinds  of  States 45 

§  3.   Acquisition  of  Territory 70 

§  4.  Boundaries 75 

§  5.   Change  of  Sovereignty 85 

(o)  Effect  on  Puhlic  Rights  and  Obligations 85 

(fe)  Effect  on  Private  Rights 95 

(c)  Effect  on  Law 104 

§  6.   Territorial  Waters  of  a  State 116 

(a)  Rivers 116 

(h)  Straits  and  Lakes 132 

(c)  Bays 143 

('/)  Marginal  Seas 154 

CHAPTER    TL 

TERRITORIAL   JURISDICTION. 

§  7.   Rights.  Privileges,  and  Immunities  of  Foreign  Sovereigns     ....  1 70 

(a)  Right  of  Foreign  Sovereign  to  Sue  in  Courts  of  Foreign  State   .  1 70 

(b)  Tmmunity  of  Foreign  Sovereigns  from  Suit 180 

§  8.  Ininuinities  of  Diplomatic  Agents 189 


X  CONTENTS. 

PAGE 

§  9.   Immunities  of  Public  Ships =     ,»     .....     .  208 

(a)  Ships  of  War 208 

(b)  Other  Public  Ships 220 

§  10.   ^lerchant  Vessels 225 

§  11.  Right  of  Asylum 256 

(rt)  In  Legations 256 

(6)  On  Board  Ships  of  War 2i8 

(c)  On  Board  Merchant  Ships 264 

§12.   Extradition  —  Interstate  Rendition 274 

§  13.  Jurisdiction  of  Offences  committed  Abroad 294 

§  14.   Extraterritorial  Acts  by  Order  of  the  State 305 

§  15.  Extraterritorial  Acts  done  by  a  State,  in  Self- Defence 308 

§  16.   Injury  to  Foreigners  by  Mob  Violence 320 

CHAPTEPt    IlL 

.Jl'RISDICTIOX    OX    THE    HIGH    SEAS. 

§17.   Merchant  Vessels 329 

§  18.   Municipal  Seizures  beyond  the  Three-Mile  Limit 343 

§  19.   Piracy 345 

CHAPTER    IV. 

NATIONALITY. 

§  20.   Indelible  Allegiance  —  Expatriation 370 

§  21.   Citizenship  —  Naturalization 376 

§  22.   Status  of  American  Indians 398 

§  23.   Treaties  the  Law  of  the  Land 412 


PART   II. 

International  Relations  as  Modified  by  "War. 

CHAPTER   L 

MEASURES  Snonx  OF  ACTUAL  WAR. 

§  24.  Reprisals 451 

§  25.   Hostile  Embargo 460 

§  26.   War  :  Purpose  and  Declaration 4C4 

CHAPTER   IL 

EFFECTS    OF    WAR    AS    IJETWEEX    EXEMIES. 

§  27.  Enemy's  Property  witliin  the  Territory  and  Debts  due  to  the  Enemy  481 

§  28.  Private  Contracts 498 

§  29.  Trade  with  the  Enemy 521 

§  30.  Duty  of  Subject  or  Citizen  to  come  Home  on  Outbrenk  of  War       .     .  556 


CONTENTS.  xi 

PAGE 

§  31.    Ransom  Bills  and  Permissible  Trading     .      „ 666 

§  32.    Commercial  Domicile o     . 585 

§  33.   Ownership  of  Goods  in  Transit 607 

§  34.   Transfers  in  Transitu 616 

§  35.   Freight  and  Liens 629 

§  3G.   Recapture —  Rescue 649 

§  37.   Hostile  Occupation,  Conquest,  and  Cession 655 

§  38.   Termination  of  War 6  75 

CHAPTER   III. 

RELATIONS    BKTWflEX    BELLIGERENTS    AND    NEUTRALS, 

§  39.   Belligerent  Capture  in  Xeutral  Waters 684 

§  40.   Equipment  of  Vessels  of  War  in  Neutral  Territory 692 

§  41.   Aid  to  Insurgents 721 

(a)  Loan  of  Money 721 

(b)  Ship,  Munitions,  and  other  Supplies 731 

§  42.   Contraband  of  War 760 

§  43.   Despatches  and  Persons  as  Contraband 780 

§  41.   Blockade 796 

§  45.   Rule  of  the  War  of  1756 845 

§  46.  Continuous  Voyages 848 

§47.  Visit  and  Search :   Xeutral  Property  on  the  High  Seas 858 

§  48.   Prize  Courts 8£9 


Index-Digest 935 


TABLE  OF  CASES. 


Principal  cases  are  in  italics. 


Page 

Abd-ul-Messih  v.  Farra 53 

Abell  i:  Venn.  Mutual  Life  Ins.  Co.     516 

Abo,  Tlie 605 

(La)    Abra   Silver    Mining    Co.    v. 

United  States 449 

Acteon,  The 530 

Adams  v.  Akerlund 426 

Adela,  The 689,  690 

Admiral,  The 820 

Adida,  The 826 

Advocate-General     v.     Ranee     S. 

Dossee 106 

Aertsen  v.  Ship  Aurora 233 

Ail  Kee,  In  re 255 

Ah  Sing,  In  76 333 

Airhart  u.  Massieu 97,  105 

Alabama  Claims  and  Award,  1872    .     713 

Albemarle,  The 899 

Alerta,  The 705 

(Mrs.)  Alexander's  Cotton    495,  534,  536, 

605,  762 

Alfred,  The 705 

Alire's  Case 475 

Alleganean,  The      .......     143 

Ame'die,  The 369 

American  Ins.  Co.  v.  Canter     .     .     .     657 

Amiable  Isabella,  The 427 

(La)  Amistad  de  Rues 705 

Amory  v.  McGregor 561 

Amy  Warwick,  The 62,  480 

(L')  Anemone 228 

Ann  Green,  The 494 

Ann  Green,  The 620 

Anna,  The 74 

Anna,  The 684 

Anna  Catharinn,  The 612 

Anna  Maria,  The 910 

Anne,  The 688 

Antelope,  Tlie 28,  369,  860 

Antlion  V.  Fislier 570 

Antoine  v.  Morshead       .     ,     .      536,  541 


Antoine  v.  Morshead 573 

Antonia  Johanna,  The 604 

Antonia  Johanna,  The 632 

Apollo,  The 776 

Apollon,  The 344 

Appollon,  The 909 

Ariel,  The 628 

Armstrong  v.  United  States    .     .     .  674 

Arnold  v.  United  States  Ins.  Co.     .  205 

Arrogante  Barcelones,  The     .     .     .  705 

Astor  V.  Hoyt 109 

Astrea,  The 655 

Alalanta,  The 780 

Atalanta,  The 894 

Atlas,  The 895 

Attorney-General     v.     Weedon     & 

Shales 487 

Aubrey,  lure 239,  437,  451 

Baigorry,  The 820 

Bnin  V.  Speedwell 675 

Baiz,  In  re 6 

Baiz,  In  re 197 

Baldy  v.  Hunter 61 

Baltica,  The      .     .     .    605,  628,  629,  802 

Barbuit's  Case 205 

Barclay  v.  Russell 488 

Barnett  v.  Barnett 97 

Barton  Co.  v.  Newell 538 

Bas  t'.  Tingy 471,  654 

Beaver,  The 653 

Bedel  v.  Loomis 76 

Beers  v.  Arkansas 186 

Behrensmeyer  r.  Kreitz      ....  396 

Belgenland,  The 338 

Bell,  The 655 

Bell  V.  Chapman 536 

Bell  V.  Reid 604 

Bello,  The 655 

Bello  Corrunes,  The 705 

Bellona,  The 655 


XIV 


TABLE    OF   CASES. 


Page 

Belnnp  v.  Schild I8y 

Benito  Esteiiijer,  The 621 

Buiitzen  ;•.  Boyle 22,  5o6 

Bentzen  v.  Boijle 598 

Bermuda,  The 857 

Berne,  City  of,  v.  Bank  of  England       38 

Betsey,  The 798 

Betsey,  The 705,  899 

Betsy,  Tiie 895,  929 

Bigelow  ('.  Niukerson 142 

Blair  V.  Silver  Peak  Mines       .     .     .     376 

Blanford  v.  Tlie  State 282 

Blankard  v.  Gatdy 104 

Boedes  Lust,  The 4(30 

Boedes  Lust,  The 553 

Bootii  V.  L'Esperanza 652 

Botiller  v.  Dominguez 426 

Boussmaker,  Ex  parte 494 

Boussmaker,  Ex  parte 536 

Boyd  V.  Thayer 395,  401 

Bragg  V.  Tuffts 521 

Brandon  v.  Cushing 553 

Brig  Joseph,  The 536 

Brig  Juno,  The 251 

Brig  Sea  Nymph,  The 869 

Briggs  V.  The  Light  Boats      .      189,  225 

Brothers,  The 705 

Brown  v.  Duchesne 186 

Brown  v.  Gardner 538 

Brown  v.  Hiatts      .     .    503,  516,  541,  683 

Brown  v.  United  States 486 

Brown  v.  United  States  .     .  494,  499,  536 

Browniii<r  f.  Browning 97 

Brunswick,   Duke   of,   v.    King    of 

Hanover 179,  182 

Bryant  v.  United  States  ....  436 
Buchanan  v.  Curry  ....  516,  541 
Buena  Ventura,  The  ....      465,  499 

Burley's  Case 293 

Buron  V.  Denman 305 

Buron  v.  Denman 307 

Bush  V.  Bell 530 

Butternuth  v.  St.  Louis  Bridge  Co.  .  121 
Byrne  o.  Herran 192 

Caldwell  r.  Van  Vlissengen    .     .     .  186 

Caldwell's  Case      .......  282 

Calvin's  Case 381 

Camelo  v.  Britten 530 

Camille,  In  re 396 

Capen  v.  Barrows 536 

Carlisle  v.  United  States     ....  397 

Carlos  F.  Roses,  The 637 

Carlolta,  The 650 

Carneal  v.  Banks 420 


Carolina,  Tiie 584,  585 

Caroline,  The 317 

Caroline,  Tlie 319,  787 

Caroline  Wilmans,  The       ....     910 

Carr  v.  United  States 189 

Carrington  v.  Merchants''  Ins.  Co.  .  769 
Case  V.  Terrell 189 

*  Custioni,  In  re 285 

*  Castioni.  In  re 293 

Cazo's  Case 293 

Chappell  V.  Jardine 108 

Charkieh,  The 48 

Charkieli,  The 219 

Charlotte,  The 152,  901 

Charlotte  v.  Chouteau 97 

Charming  Betsey,  The 22 

Charming  Nancy,  The 568 

Chavasse,  Ex  parte 779 

Chavez  v.  Chavez  de  Sanchez  .  .  97 
Cherokee  Nation  i'.  Georgia  .  .  37,  53 
Cherokee  Tobacco,  The      .     .      420,  426 

Cherriot  ;;.  Foussat 480 

Cheshire,  The 820 

Chin  King,  Ex  parte 379 

Chinese  Exclusion  Case      .     .      413,  432 

Chirac  v.  Chirac 419 

Choctaw  Nation  v.  United  States     .     427 

Christie  v.  Secretan 926 

Christina  Maria,  The 776 

Church  V.  Iluhhart 343 

Circassian,  The 820,  828 

Clarke  v.  Cretico 205 

Clarke  v.  Morey 541,  545 

Clayton  v.  Ship  Harmony  ....     654 

Cloete,  In  re 196 

Clypso,  The 895 

Coffee  I'.  Grover 85 

Coleman  v  Tennessee 212 

Columbia,  The       820 

Commerctn,  The 632 

Commercen,  The 765 

Commonwealth  v.  Blanding  .  300,  301 
Commonwealth  v.  Blodgett  ....  308 
Commonwealth  v.  Chapman  .  .  .  106 
Commonwealth  v.  Hawes  ....  282 
Commonwealth  v.  Kosloff  ....  205 
Commonwealth  v.  Macloon  .  .  .  300 
Comte  de  Wohrougoff,  The    .     .     .     524 

(La)  Conception 705 

Conn  V.  Penn 516,  541 

Constitution,  The 218 

Constitution,  The  ....  219,  220,  919 
Contzen  ?■.  United  States    ....     396 

Cuoley  V.  Golden 129 

Coolidge  V.  Inglee 536 


TABLE   OF   CASES. 


XV 


Page 

Coolidge  ^'.  Payson 673 

Cooper,  In  re 76 

Coppell  V.  Hall  .     .    .    205,  520,  534,  541 

Gorier  Maratimo,  The 909 

Cornet  v.  Williams 521 

Cornu  V.  Blackbunie 666 

Costa  Rica  Packet,  Tlie  ....  462 
Craemer  v.  Wasliington  ....  436 
Crapo  V.  Kelley  ....  331,  333,  788 
Crawford  v.  The  William  Perm  .  .  675 
Crawford  ^  Mc  Clean  V.  The  William 

Penn 580 

Creole,  The 252 

Creole,  The 255 

Cross  V.  Harrison 105,  658 

Cross  i\  Talbot 191 

Curlew,  The 901 

Cashing,  Adm'r,  v.  United  States  .  929 
Cutting's  Case 301 

Daifjie,  Tlie 585 

Daiiiese  v.  Hale 237 

Dainese  i'.  United  States     ....  237 

Dalgleish  v.  Hodgson 926 

Danckebaar  Africaan,  The     .     .     .  604 

Daniel  v.  Hutcliinson 63 

Darhg  v.  The  Brig  Erstern       .     .     .  896 

Dashing  Wave,  the 820 

Daubuz  V.  Morsl)ead 575 

Davis  V.  The  Police  Jury    ....  421 

DeBode  v.  Regina 400 

Deergaden,  The 524 

De  Httber  v.  Queen  of  Portugal     .     .  180 

De  Jarnet  v.  De  Gicersville       .     .     .  542 

De  Lima  v.  Bidwell 674 

Dennison  v.  Imbrie     ....     516,  541 

Derby,  Case  of  Earl 105 

Dewey  v.  United  States      ....  899 

Dewing  v.  Perdicaries 521 

De  Wittz  V.  Hendricks 721 

Diana,  The 632 

Diligentia,  The 655,  674,  689 

Dillon,  In  re 192,  481 

Dobree  v.  Napier 309,  480 

Doe  V.  Braden 427 

Dole  V.  Merchant's  Mutual  Marine 

Ins.  Co .350 

Dole  V.  Merchant's  Mutual  Marine 

Ins  Co 470 

Don  Pacifico,  Case  of     .     .     .     328,  461 

Donaldson  v.  Thompson      ....  925 

Dooley  v.  United  States     ....  074 

Dorothy  Foster,  Tiie 655 

Dos  Hermanos,  The 895 

Douglas  V.  United  States    ....  541 


Page 

Dow,  Neal,  i-.  Johnson    .     :     .      212,  666 

Downes  v.  United  States     ....  674 
Drieibntein,  etc..    Mines,    Lim.,  v. 

Janson 553 

Dunham  v.  Lamphere 153 

Dupont  V.  Pichon 208 

Edward,  The 765 

Eeniglieid,  The 624 

Eenrom,  Tlie 895 

Elector  of  Hesse  Cassel's  Case   .     .  675 

Eliza  Ann,  Tlie 689 

Eliza  Cornisii,  The 820 

Elizabeth,  The 624 

Elk  V.  Wilkins 398 

Ellis  V.  Mitchell 234 

Elwine  Krepiin,  The 237 

Emancipation  Cases,  The  ....  621 

Emanuel,  The 847 

Embden's  Case 399 

Emily  St.  Pierre,  The 665 

Emperor  of  Austria  i'.  Day  &  Kos- 

sutii 178,  179 

Emperor  of  Brazil,  The      ....  179 

Emulous,  The 536 

Endrauglit,  The 766 

Enterprise,  The 255 

Estrella,  The 690,  705,  901 

Etrusco,  The 689, 690 

Evert,  The 776 

Exchange,  Schooner,  v.  McFaddon    .  208 

Exchange,  Schooner,  v.  McFaddon  251 

263,  318 

Exposito  V.  Bowden 636 

Express,  The 930 

Ezeta,  In  re 293 

Fairfax's     Devisees    v.     Hunter's 

Lessee 420 

Falcon,  The 926 

Fama,  The 421 

Fanny,  The 705,  894 

Fay  V.  Montgomery 909 

Feather  v.  The  Queen 309 

Feise  v.  Thompson 680 

Felicity,  The 910 

Fifield  V.  Insurance  Co.       .     .    44,61,  360 

Fifty-two  Bales  Cotton 565 

Filor's  Case 541 

Fiott  r.  Commonwealth       ....  432 

(Die)  Fire  Damer 910 

First  Nat.  Bank  v.  Kinner  ....  106 

Fisher  v.  Begrez 196 

Fisher  v.  Krutz 541 

Flad  Oyen,  The 919 

Flad  Oyen,  The 925 


XVI 


TABLE   OF   CASES. 


Fleming  v.  Page 659 

Flindt  V.  Crockatt 526 

FLindt  v.  Scott 526 

Florida,  The 690 

Flying  Scud,  The 605 

Folliott  v.  Ogden 304,  487 

Fang  Yue  Ting  v.  United  States  .     .     382 
Pong  Yue  Ting  v.  United  States  .     .    413 

Forbes  v.  Cochrane 258 

Ford  f.  Surget 61,    62 

Fortuna,  The  .     .    256,  369,  524,  631,  895 
Foster  &  Elara  v.  Neilson  44,  77,  84,  390, 

420 
Foster  ^  Elam  v.  Neilson  .  .  .75,  412 
Fourteen  Diamond  Rings  v.  United 

States ' 667 

Fox  r.  Southack 428,  432 

Foxcroft  &  Galloway  v.  Nagle     .     .     500 

Francis  &  Cargo 621 

Franciska,  The 804 

Franciska,  The 820 

Frau  Margaretha,  Tiie 765 

Freedom,  The 524 

Freeland  i:  Walker 531 

Frelinghuysen  v.  Key     .     .     .      435,  449 
Freundschaft,  The      ....      494,  604 

Fretz  r.  Stover 516 

Friendship,  The 787,  788 

Fiirtado  V.  Badgers 549 

Furtado  i'.  Rodgers         553 

Gage,  The 655 

Gamba  v.  Le  Mesurier 553 

Garcia  v.  Lee 76,  97 

Gardner  v.  Heartt 109 

Garland  v.  Davis 817 

Gates  r.  Goodloe         ....      565,  666 

General  Armstrong,  The     ....  687 

General  Pinokney,  The       ....  495 

Geofroy  v.  Riqgs 413 

Georgia,  The  ^ 629 

Gerasimo,  The        605 

Gemsimo,  The 811 

Gibbons  v.  Livingston 429 

(La)  Gloire 585 

Goede  Hoop,  The        531 

Goodman  v.  McGchee     .     .     .      520,  521 

Goodrich  ^-  De  Forest  v.  Gordon  .     .  571 

Graaf  Bernstorf,  The 895 

Gran  Para,  The 705 

Grange,  Tiie 090 

Grapeshot,  The 666 

Grail,  Ad ministrutiir,\.  United  States  452 
Gray,     Administrator,    v.     United 

States 471 


Gray  Jacket,  The 565 

Grazebrook,  In  re 779 

Griswold  y.  Waddington     .     520,536,541 

Griswold  V.  Waddington       ....  504 

Grossmayer's  Case 481 

Grover  v.  Carter 541 

Guadalupe  Co.  c.  Wilson  Co.       .     .  76 

Guerin,  Case  of 674 

Guidita,  The 524 

Guiteau's  Trial 196 

Haabet,  The 776 

Hall  V.  Root 97 

Hallet  V.  Brown 577 

Hamilton  v.  Dillin 534 

Hamilton  v.  Eaton 481 

Hanauer  v.  Doane      ....      520,  521 

Hanauer  v.  Woodruff 621 

Handly's  Lessee  v.  Anthony      .     .     .  116 

Handly  r.  Anthony 84,116 

Banger  v.  Abbott 500 

Hanger  v.  Abbott ....   468,  534,  536 

HarcouH  v.  Gaillard  .  ■ 70 

(Le)  Hardy  v.  La  Voltige'ante     .     .  605 

Harmony^  The 585 

Harrison  v.  IVIeyer 666 

Harrold  v.  Arrington      ....     76,  77 

Hatch  V.  Baez 182 

Hauenstein  v.  Lynham   .     .     .      419,  426 

Hausding's  Case 399 

Havelock  r.  Rockwood 926 

Haver  v.  Yaker 420 

Haymond  r.  Camden 548 

Head  Money  Cases     ....     413,  426 

Heathfield  i-.  Chilton 6 

Heathjield  v.  Chilton        189 

Heirn  v.  Bridault 1 

Helen,  The 665,  779 

Helen,  The 821 

Helena,  The 45 

Helena,  The 2 

Henderson's  Case 585 

Henrick  and  Maria,  Tiie      ....  820 

Henry,  The 655 

Herman,  The 605 

Hermosa,  The 255 

Hibbs,  Ex  parte 282 

Hickman  r.  Jones 521 

Hoare  v.  Allen 408 

Hoare  v.  Allen 541 

Holmes,  Ex  parte 282 

Holmes  v.  Jenni.^on 2b2 

Home  Insurance  Co 59 

Honduras,  Republic  of,  v.  Marco  A. 

Soto " 24 


TABLE   OF   CASES. 


XVI I 


Page 

Hoop,  The 521 

Hoop,  The 524,  536,  670 

Hooper,     Administrator,    v.     United 

Stales 4;J3,  633 

Hooper,    Administrator,    v.    United 

States 459,  460,  900,  909 

Hopkins  v.  De  Robeck 192 

Hopner  v.  Appleby 652 

Horner  v.  United  States      ....     413 

Huascar,  The 352 

Hubbard  i'.  Hornden  Express  Co.  .  482 
Hubbell  r.  United  States  ....  462 
Hudson  r.  Guestier     ....       344,  925 

Hughes  I'.  Cornelius 920 

Hughes  V.  Edwards 420 

Hullett  r.  King  of  Spain      ....       87 

Hunt's  Heirs  i'.  Hunt 520 

Hurtige  Hane,  The 3 

Hutchinson  v.  Brock 536 

Huus  V.  New  York  and  Steamsliip 

Co 674 

Imina,  The 776 

Immanuel,  The 845 

Indian  Cliief,  The 205 

Indian  Chief,  The 588 

Ingliss  V.  Trustees 45 

International,  Tiie       ....      762,  780 

(L')  Invincible 653 

Invincible,  The 705.  025,  926 

Isaacs,  Tai/lor  ^  Williams  v.  City  of 

Richmond 521 

Itata,  The 344,  740 

Jackson  v.  Willard 109 

James  G.  Swan,  The 76 

Jan  Frederick,  The 553 

Jan  Frederick,  The 618 

Jecker  v.  Montgomeri/ 664 

Jecker  v.  Montgomery   .     .  534,  536,  909 

Jenks  V.  Hallet  &  Brown     ....  577 

Jennings  v.  Carson 11 

(La)  Jeiine  Enqenie 3 

Johan  Pieter,  The 531 

Johanna  Emilie,  The      .     .     .      464,  498 

Johanna  Maria,  The 803 

Jolin  and  Jane,  The 655 

Jolin  Gilpin,  The 566 

Johnson  v.  Jones 666 

Johnson  v.  Mcintosh 71 

Johnson  v.  21  Bales 2 

Jones  V.  Garcia  del  Rio 38 

Jones  V.  Leonard 285 

Jones  I'.  Mehan 427 

Jones  V.  United  States 38 


Page 

Jones  V.  United  States 74 

Jonge  Maryaretha,  The 762 

Jonge  Margaretha,  The      ....  780 

Jonge  J^ieter,  The 820 

Jonge  Tobias,  The 766 

Josefa  Sequnda,  The 652 

Joseph,  The  Bng 556 

Juffrow  Louisa  Margaretha,  The     .  524 

Juffrow  Maria  Sciiroeder,  The    .     .  804 

Julia,  The 820 

Junge  Klassina,  The 605 

Juniata,  The 494 

Kansas  Indians 427 

Keene  v.  McDonough 63 

Keir  v.  Andrade 630 

Keith  V.  Clark 28 

Kennett  v.  Chambers 723 

Kensington  v.  Ingliss 531 

Kentucky  v.  Dennison 285 

Kershaw  v.  Kelsey 635 

Kestor,  The       273,  413 

Ketcham  1-.  Buckley       ....    61,113 

Ketland  v.  The  Cassius 700 

Kierlighett,  The 926 

King  of  Greece,  The 179 

King  of  Prussia,  The,  v.  Kiipper      .  173 

King  of  Spain,  The 179 

King  of  Spain  v.  IluUet  &  Widder  178, 

179 

King  of  Spain  v.  ^Nlachado       .     .     .  170 

King  of  Spain  v.  Oliver      ....  179 

King  of  the  Two  Sicilies  r.  Willcox  87 

Kingsbury's  Case       285 

Kinkead  v.  L'nited  States   ....  07 

Kirk  i:  Lynd 899 

Knox  V.  Lee       521 

Kortright  v.  Cady 109 

Koszta's  Case 400,  401 

Lady  Jane,  The 524 

Lafayette,  The       932 

Lagarve's  Case 282 

Lamar  v.  Brown 495 

Lamb  v.  Davenport 116 

Laniington,  The 332,  342 

Lane  County  t:  Oregon       ...      27,  44 

Lascelles  c  Georgia        285 

Lee  Joe  v.  United  States      ....  382 

Lee V in  v.  Cormac 531 

Lem  Moon  Sing  r.  U.  S 399 

Leitensdorfer  v.  Webb    ....    97,  665 

Lem  Moon  Sing  r.  United  Stales     .  '•'W 

Leucade,  The 910 

Levy  V.  Stewart 5U4 


XV  111 


TABLE   OF   CASES. 


Lilla,  The      ....       62,  494,  655,  689 

Lindo  V.  Kodney 46^:5 

J.isette,  The 778,  820 

LitlelL  V.  Erie  R.  R.  Co 378 

Little  r.  Barreme        817 

Little  V.  Watson 97 

Lively,  The        909 

Lock  wood  V.  Dr.  Coysgarne   .     .     .  196 

Lola,  The        19 

Lone,  The 655 

Lord  Nelson,  Tlie       665 

Lottawanna,  The 1- 

(Le)  Louis 352 

(Le)  Louis 860 

(La)  Louisa       820 

Luther  v.  Borden 44 

McCarjTO  v.  N.  O.  Ins.  Co 255 

Macartney  v.  Garbutt 196 

McCuUocli  V.  Maryland       ....  44 

Macdonald,  Case  of 370 

McDonald  v.  Mallory      .     .     .      332,  333 

Mcllvaine  v.  Coxe's  Lessee     ...  45 

McKee  v.  United  States       .     .      534,  536 

McKennon  v.   Winn 114 

Macleod  v.  Attorney-General       .     .  304 

McLeod's  Case 300,  319 

McVeigh  v.  Bank  of  Old  Dominion  500 

Madison,  The 785 

Madonna  del  Burso,  The     ....  3 

Madrazo  v.  WiUcs 369 

Magdalena,  The 705 

Magellan  Pirates,  The 351 

Maiiler  v.  Transportation  Co.       .     .  153 

Mahon  v.  Justice 285 

Maissonnaire  v.  Keating      .     .      571,  766 

Manchester  v.  Massachusetts  .     .     .  153 

Maniiasset,  The 12 

Manhattan  Life  Ins.  Co.  v.  Buck       .  482 

Manning  v.  Nicaragua 186 

Marguerite,  The 655 

Maria,  The 858 

Maria,  The 776,  820,  860 

Marianna  Flora,  The 322 

Marianna  Flora,  The 873 

Marias,  In  re  D.  F 666 

Marks  v.  United  States 475 

Martin  v.  B.  &  O.  II    U.  Co.     .     .     .  604 

Murtino  v.  International  Life  Ins.  Co.  604 

Mary,  The 585 

Marij  Ford,  The 652 

Mary  Ford,  The 652,  653 

JVLissachusetts  v.  Green 304 

Matthews  V.  MrSiea         508 

Mauran  v.  Insurance  Co 61 


May  V.  Specht 97 

Meclianics  &  Traders'  Bank  v.  Union 

Bank 666 

Mentor,  The 676 

Merritt  v.  Bartholiek 109 

Meteor,  The 720 

Mexico  V.  De  Arrangoiz  ....  37 
Mexico  V.  De  Arrangoiz  .  .  .  .  .  170 
Mighell  !'.  Sultan  of  Jahore     ...     181 

Miller,  In  re 282 

Miller  i'.  The  Resolution  ....  571 
Miller  \.  The  Resolution  {I)  ...  899 
Miller  V.  The  Resolution  (2)  ...  906 
Miller  v.  United  States    61,  480,  481,  571 

Milligan,  Ex  parte 606 

(La)  Minerve 767 

Minneapolis  v.  Reum 390 

Minturn  v.  Brower 97 

Mitcliel  c.  United  States     ...     74,  97 

Mitchell  V.  Harmony 495 

Mitchell  V.  United  States  ....  534 
Mitchell  V.  United  States       ....     605 

(Der)  Mohr 910 

Mohr  &  Haas  v.  Hatzfeld    ....     674 

Moncan,  lure 255,  333 

Montezuma,  The 351 

Montgomery  v.  Ives 74 

Montgomery  v.  United  States       516,  538 

Montijo's  Case 329 

More  V.  Steinbach 73 

Mortimer  v.  iV.  Y.  Elevated  R.  R.  Co.     Ill 

Moses,  In  re 396 

Mouseaux  v.  Urquhart 541 

Munden  v.  Duke  of  Brunswick  .  .  180 
Murray  v.  Charming  Betsey    .      400,  909 

Musson  y.  Fales 536 

Musurus  Bey  v.  Gadban  ....  208 
Mutual  Association  Society  v.  Watts     97 

Nancy,  The 705 

Nanc}^,  The 817 

Nathaniel  Hooper,  The 633 

Neagle,  In  re 400 

Neal  Dow  v.  Johnson      .     .     .      212,  666 

Neely  v.  Henkel 53,  675 

Neplunus,  The 796 

Neptunus,  The 804 

Nereide,  The 884 

Nereide,  The      22,  322,  338,  437,  451,  894 

Nereyda,  The 705 

Neustra  Senora  de  los  Dolores,  The   .     681 

Neutralitet,  The 767 

New  Chili  Gold  Mining  Co.  v.  Blanco    207 

New  Orleans  Mob 328 

New  Orleans  Riot 329 


TABLE   OF   CASES. 


XIX 


New  Orlrans  V.  Ahhagnalo    ....  320 

New  Orleans  v.  Steainsliii)  Co.     666,  674 

New  York  Indians  v.  United  States  104, 

427 

New  York  Life  Ins.  Cn.  i-.  Davis      .  616 

Neio  York  Life  Ins.  Co.  v.  Sei/ms     .  612 

New  York  Life  Lis  Co.  v.  Stathem    .  612 

Newfoundland,  Tlie 835 

Nicnol  V.  Goodall 901 

Niolioias  V.  United  States  ....  189 

Nigel  Gold  Mining  Co.,  Lim.,  v.  Hoode  004 

(L(i)  Ninfa 443 

Nitcliencoff's  Case 197 

Niiestra  Senora  de  Regla    ....  909 

Nynipli,  The 677 

Oakes  v.  United  States       .     .     .   61,  899 

Ocean,  The 566 

Ocean,  The 819 

Odd;i  V.  Bovill 924 

Odin,  The 152 

Olinde  Roclrigues,  The 835 

O'Neal  ?;.  Bonne 504 

Ornelas  v.  Ruiz      .......  436 

Orozembo,  The 785 

Orr  r.  Hodgson 420 

Ortiz,  Ex  parte        74 

Osborn  I'.  U.  S.  Bank 399 

Ostee,  Tiie 681 

Ouaciiita  Cotton,  The     .     .     .      534,  536 

Packet  de  Bilboa,  The 609 

Page  V.  Lennox 926 

Page's  Case 487 

Palmer  v.  Lorillard 632 

Panaghia  Rhomba,  The 800 

Panama,  The 474,  475 

Panama,  The 788 

Paquetle  Habana,  The 19 

Parkinson  v.  Potter 192 

Parlement  Beige,  The 220 

Parlement  Beige,  The 221 

Paton  V.  Nicholson 536 

Patrixent,  The        569 

Paul  V.  Ciiristie 541 

Peach  V.  Bath 6 

Pearl,  Tiie 820 

Pelican,  The 40 

Peniiallow  v.  Doane        ...    11,  26,  36 

Pennsylvania,  The 654 

People  V.  Curtis 282 

People  i\  Gerke  &  Clark     ....  420 

People  '.'.  McLeod 309 

Pequinot  v.  City  of  Detroit     ...  396 

Perkins  v.  Rogers 654 


Page 

Perle,  The C88 

Peru  V.  Dreyfus 38 

Peru  V.  Peruvian  Guano  Co.        .     .      38 

Peterhof,  The 700 

Peterhoff,  The 820,  857 

Pliilips  V.  Hatch 683 

Phcebe  Ann,  The        705 

Pious  Fund,  Tlie 449 

Polly,  The 655 

Potts  V.  Bell 525 

Potts  V.  Bell       .     .     .     5.36,541,563,580 

Power  V.  Lester 109 

President,  The 566 

Pridgeon  v.  Smith 521 

Prins  Frederik,  Tiie        220 

Prioleau  v.  United  States  ^  Johnson      173 

Prischell  v.  AUnut 530 

Prize  Cases,  The 475 

Prize  Cases,  The 601 

Prize  Cases,  The      62,  480,  481,  534,  536, 

820 

Protector,  The 682 

Providence,  Tiie 655 

Prussian  Subject's  Case      ....     399 
Purissima  Conception,  The     .     .     .    689 

Queen  r.  Keyn 19 

Queen  v.  Keyn .     154 

Queen  of  Portugal,  The      ....     179 

R.  V.  Serva  &  others 860 

Ranger,  The 765 

Ransom  v.  Alexander 521 

Rapid,  The 557 

Rapid,  The 782 

Reform,  The 634 

Reggel,  Ex  parte 285 

Regina  v.  Anderson '    .     331 

Regina  v.  Lesley 337 

Regina  v.  Lopez 336 

Regina  v.  Sattler 336 

Reliance,  The 230 

Respublica  v.  De  Longchamps    .     ,     196 

Rex  V.  Dix 282 

Rhode  Island  v.  Massachusetts  .     .      74 

Ricord  v.  Bettenham 5.36,  563 

Ringende  Jacob,  Tiie      524,  766,  776,  780 

Roberts  v.  Cocke 500 

Rodgers  v.  Bass 541 

Rodriguez,  In  re 396 

Rolla,  The     .         309, 804 

Rose  V.  Himely 344,  480 

Rose  in  Bloom,  The 584 

(La)  Rosina 5^5 

Ross,  la  re 238 


XX 


TABLE   OF   CASES. 


Page 

Rothschild  v.  Queen  of  Portugal     .  178 

Koussin  V.  Parks 97 

Rucker's  Case 585 

St.  Alban's  Raid 293 

St.  Lawrence,  The 494 

St.  Laiurence,  The 559 

St.  Louis,  Tlie 524 

St.  Nicholas,  The 895 

Saito,  In  re .  386 

Sally,  The 607 

Sally,  The 699,895 

Salvador,  The 743 

San  Jose  Indiano,  Tiie 605 

San  Jose  Inaiano,  The 614 

San  Juan  Baptista,  The      ....  910 

Sanborn  v.  Vance 97 

Santa  Cruz,  The 649 

Santissima  Trinidad,  The   ....  701 

Sautissima  Trinidad,  The     263,  480,  720, 

779 

Sapphire,  The 178 

Sarah,  The 899 

Sarali  Christina,  The      .     .  766,  775,  780 

Sarah  Starr,  The 495 

Sarah  Starr  &  Cargo 566 

Scholefield  &  Taylor  v.  Eichelberger  580 

Schooner  John,  The 677 

Schooner  Nancij,  The 861 

Scliooner  Sopi'iie,  The 682 

Scliooner  Washington,  Tlie     .     .     .  153 

Schultze  V.  Schultze  ....      426,  443 

Scotia,  The 17 

Scotia,  The 333 

Scotland,  The 12 

Scoville  V.  Canfield 304 

Sea  Lion,  The 531 

Sea  Lion,  The 534 

Seagrow  v.  Parks 333 

Secretary    of    State    for    India    v. 

Kamachee   Baye   Saliiba    .     .     .  307 

Sedulous,  The 655 

Semmes  v.  Hartford  Ins.  Co.  .      503,  516 

Seton  V.  Low 778 

Seymour  v.  Bailey 545 

Shacklett  v.  Polk 541 

Shanks  u.  Dupont 374,420 

Sherlock  v.  Allen 332 

Sliip  Amazon,  Tlie,  v.  United  States  884 

Ship  Ann  Green,  The 620 

Shii>  nose,  The,  v.  United  States.     .  879 

Ship  Tom,  The 910 

Shively  v.  Bowlby 74,  153 

Short  Staple,  The 655 

Siebold,  Ex  parte 44 


Paga 

Siffkin  V.  Allnut 531 

Siffkin  L\  Glover 531 

Silesian  Loan  Case 461 

Sir  William  Peel,  The 690 

Siren,  The 648 

Sitka,  The iilS 

Slaughter  House  Cases 400 

Slocum  V.  Mayberry 909 

Sloop  Betsey,  The 705 

Small's  Administrato}-s  v.  Lumpkin's 

Executrix 538 

Smith  i\  Brazel ton "482 

Society  v.  Wheeler 604 

Society  for  Propagation  of  Gospel  in 

Foreifjn  Parts  v.  New  Haven  .  .  428 
Society  for  Propagation  of  Gospel 

in  Foreign  Parts  v.  New  Haven    .  432 

Sotela's  Case 273 

Soult  r.  L'Africaine 687 

South  African  Republic  v.  La  Com- 

pagnie  Franco-Beige 181 

Sparenburg  v.  Bannatyne  ....  605 

Springbok,  The 857 

Sprott  V.  United  States  ....  61,  521 
Staat  Embden,  The   .     .     .  765,  766,  776 

Stanley  v.  Schwalby 189 

State  V.  Carter 298 

State  V.  Dunwell 76 

State  I'.  Knight 300 

State  V.  Patterson 283 

State  V.  Patterson 285 

State  V.  Vanderpool 282 

State  V.  Wi/ckoff 296 

Steamboat  Co.  v.  Chase      ....  332 

Stephen  Hart,  The 852 

Stephen  Hart,  The 857 

Stert,  The 820 

Stetson  V.  United  States     ....  143 

Stewart,  Case  of  Commodore     .     .     .  910 

Stewart  v.  Kahn 504 

Stockton  V.  Williams 74 

Stovall's  Administrators  i\  United 

States 481 

Strother  v.  Lucas 97 

Strousberg  v.  Costa  Rico    ....  181 

Stupp,  Lire 436 

Susa,  The 895 

Sutton  V.  Sutton 427 

Swan  I'.  United  States 899 

Swan,  The  James  G 76 

Swineherd,  The  (le  Porcher)  .     .     .  677 

Talbot  V.  Jan  sen 705 

Talbot  V.  Qunian 640 

Talbot  r.  Seeman   ....    22,471,654 


TABLE   OF   CASES. 


XXI 


Tarbell's  Case 44 

Taylor  v.  Barclay 38 

Taylor  v.  Morton 426 

Taylor  r.  Nashville  &  Chattanooga 

R.  R.  Co 666 

Taylor  &  Marshall  v.  Beckham  .     .  44 

Teresita,  The 820 

Terliitden  v.  Amex 436 

Teschinacher  r.  Thompson     ...  97 

Teutonia,  The 471 

Texan  Star,  The 030 

Texas  V.  White 25 

Texas  v.  White 44,  521 

Thetis,  The 675 

Thomas  r.  Hunter 500 

Thomas  Gibbons,  The 901 

Thompson,  The 909 

Thompson  v.  Powles 87 

Thompson  v.  Powles 723 

Thvrington  v.  Smith  i^~  Hartleji      .     .  53 

Thorington  r.  Smith  &  Hartley  .     .  62 

Three  Friends,  The 44 

Three  Friends,  The 748 

Tirara  v.  Marsh 109 

Titus  V.  United  States 94 

Tom,  The  Ship 910 

Torlade  v.  Barrozo 208 

Tousig's  Case 401 

Trende  Sostre,  The 778 

Trent  Case 788 

Trevino  v.  Fernandez 63 

Trimble's  Case 293 

Triquet  v.  Bath 6 

Triquet  i-.  Bath 191 

Trois  Freres,  The 615 

Tucker  y.  Alexandroff    .     .     .      218,426 

Twee  Gebroeders,  The  .     .  129,  687,  691 

Twee  Juffrowen,  The 776 

Twilling  Riget,  The 633 

Two  Friends,  The 655 

Tyler  v.  Defrees 481 

Underhillv.  Hernandez 62 

Underbill  v.  Hernandez    70, 182,  309,  319 

United  States  v.  The  Active  ...  2 

United  States  v.  The  Actii-e      .     .     .  464 

United  States  v.  Ambrose  Li(/ht     .     .  346 

United  States  v.  Ambrose  Light  322,  350 

United  States  v.  Arredondo    ...  76 

United  States  i:  Baker 350 

United  States  v.  Benner      ....  196 

United  States  v.  Bennett     .     .       3-33,  -3.36 

United  States  v.  The  Betsey  ...  899 

United  States  v.  Clarke's  Heirs  .     .  97 

United  States  v.  Davis 294 


Page 

2tJ4 

256,  666,  762 

74 
482 
541 
803 
695 
700 
657 
494 
521 
256 
275 
404 
495 
536 
189 
197 

97 


94, 


534, 


495, 


United  States  v.  Diekelman 
United  States  v.  Diekelman 
United  States  v.  Fernandez 
United  States  v.  Greathouse 
United  States  v.  Grossmayer 
United  States  v.  Guillem    . 
United  States  v.  Guinet  ,     . 
United  States  v.  Guinet  .     . 
United  States  v.  Hayward 
United  States  v.  Homeyer 
United  States  v.  Huckabee 
United  States  v.  Jeffers    . 
United  States  v.  Jeffers 
United  States  v.  Kagama 
United  States  v.  Klein    . 
United  States  v.  Lane     . 
United  States  v.  Lee 
United  States  v.  Liddle 
United  States  v.  Lucero 
United  States  v.  McRae 
United  States  v.  The  Meteo 
United  States  i-.  The  Miranda 
United  States  v.  Moreno 
United    States    v.    One    Hundred 

Barrels  of  Cement      .     .    534,  545, 
United  States  i\  Ortega      .     .       197, 
United  States  v.  Pacific  R.  R 
United  States  v.  Palmer 
United  States  v.  Pelican  Ins.  Co. 
United  States  v.  Percheinan 
United  States  v.  Peters    . 
United  States  v.  Peterson 
United  States  v.  Prioleau 
United  States  v.  Quincy 
United  States  v.  Quincy 
^United  States  v.  Rauscher 
United  States  v.  Rauscher 
United  States  v.  Repentigny 
United  States  v.  Rice 
United  States  v.  Richard  Peters 
United  States  v.  Rodgers 
United  States  v.  Smiley    . 
United  Slates  v.  Smith 
United  States  v.  Smith     . 
United  States  r.  Smith  . 
United  States  v.  Stevenson 
United  States  v.  Texas    . 
United  States  v.  Texas  . 
United  States  v.  TrumbuH 
United  States  v.  Trumbull 
United  States  v.  Wagner 
United  States  r.  Wiggins 


44, 


282, 


United  States  r.  Winchester 
United  States  r.  Wong  Kim  Ark 
Usparicha  v.  Noble 


711 

97 
666 

757 
208 
666 
480 
304 

95 
697 
142 

85 
706 
720 
274 
426 

98 
655 
697 
132 
302 

13 

89 
345 
494 

76 
116 
731 
751 
175 

97 
899 
381 
529 


xxu 


TABLE   OF   CASES. 


Van  Brokelen,  Case  of 462 

Vacasseur  v.  Krupp 182 

V^nus,  The 591 

Yenus,  The       494, 585 

Victoria,  Tiie 524 

Viliasseque's  Case 675 

A'irginia  c.  Tennessee 74 

Virginias,  Tlie        320 

Viveash  v.  Becker 205 

(11)  Volante 767 

Vrouw  Anna  Cathariua,  The      .     .  690 

Vrouw  Judith,  The 820 

Vrow  Anna  Catharina,  The    .      632,  690 

Vroiv  Htnirica,  The 629 

Vrow  Johanna,  The 910 

Vrow  Murgarelha,  The 616 

Wagner's  Case 400 

Wanstead,  Tiie 655 

War  Onskan,  Tiie 654 

Ward  V.  Smith 516,  541 

Ware  v.  Hylton      .     .    419,  420,  485,  494 

Ware  v.  Jones 517 

Watt's  Case 282 

Wlieelright  v.  Depeyster     ....     926 
WhitfiekU-.  United  States.     .     .    94,521 

Wliitis  V.  Polk 520 

Wiiitney  v.  Robertson    .    .     .      413,  426 

Whitney  v.  Robertson 422 

Wilcox  V.  Luco 206 

Wildenhus's  Case 225 

Wiliiemina,  The 847 

Willeudsoa  v.  The  Forsoket  .    .    .    233 


Page 

William,  The 542 

Wiiliam,  The 848 

William  Bacjalay,  The 565 

Williams'  Case 372 

Williams'  Case 374 

Williams  V.  Bruffy 661 

Williams  V.  Marshall 530 

WilUams  v.  Paine 538 

Williams  i-.  Suffolk  Ins.  Co.    .     .     .  654 

Willison  v.  Ciiambers 

Willison  r.  Patterson 536 

Wills  V.  State 212 

Wilson  V.  Blanco 206 

Wilson  V.  McNamee 329 

Wilson  V.  McNamee 333 

Wilson  r.  Maryat        605 

Wilson  V.  Wall 426 

Windsor,  Bi  re 282 

Wolff  v.  Oxholm 304 

Woljfv.  Oxholm 496 

Wong  Quan  v.  United  Slates    .     .     .  382 

Worcester  v.  Georgia 427 

Wren,  Tlie 844 

Wright  V.  Xutt 487 

Wunderle  v.  Wunderle 414 

Young,  Assignee  of  Colhe      .     .    .  481 

Yrisarri  v.  Clement 23 

Zee  Star,  The CIO 

Zeiter's  Case 377 

Zelden  Rust,  The 765 

Zepherina,  The 152 


SYLLABUS. 


INTRODUCTION. 

1.  Definitions  of  International  Law,  or  the  Law  of  Nations.     Cases, 

1-4;  8. 

Bluntschli,  §  1;  1  Calvo,  §  1;  Creasy,  1;  Hall,  1;  1  Halleck, 
46;  1  Jones,  262,  2  Ih.,  246  ;  1  Kent,  1;  Lawrence,  1-9;  Liszt, 
1-6;  1  Martens,  21-31;  Fillet,  Le  droit  international  public, 
1  E.  D.  I.  P.,  1;  Pomeroy,  2-25;  1  Kivier,  3-7;  Eivier,  L.  B., 
1-2;  Snow,  §  1;  Taylor,  §  2;  D.  Wheaton,  23;  L.  Wheaton,  26; 
Walker,   Manual,   1-10;    Westlake,   1;    Woolsey,  2-3. 

2.  Origin  of  the  Terms  "Law  of  Nations,"  and  "International  Law." 

Compare  with  the  terms  "Jus  Gentium,"  "Jus  Xaturale, "  "Droit 
des  gens,"  "Droit  international,"  "  Volkerrecht."  Bonfils,  §§  1-4; 
Creasy,  3-21 ;  D.  AYlieaton,  4-6,  16-21  and  note  7 ;  L.  Wheaton, 
14-21  and  notes. 

3.  International  Law  is  a  Branch  of  True  Law.     Objections  by  Austin 

and  his  followers  to  the  term  "law"  as  used  in  "international 
law,"  on  the  ground  that  there  is  no  superior  power  to  enforce 
it:  it  has  no  "sanction."  Austin's  Jurisprudence,  abridged  ed., 
5-18,  59-63,  74,  85;  Holland's  Jurisprudence,  9th  ed.,  125-126; 
369-372;  2  Stephen,  History  of  the  Criminal  Law,  32  et  seq.  The 
opposite  view,  namely,  that  International  law  is  law,  rather  than 
international  comity  or  morality,  is  held  by  the  great  majority  of 
publicists:  Bluntschli,  2-11;  Bonfils,  §§  26-31;  Creasy,  70-76; 
Hall,  14-17;  Fiore,  De  la  sanction  juridique  du  droit  international, 
30  E.  D.  I.,  5;  Jellinek,  Eecht  des  modernen  Staates,  302-307, 
337-341;  Kebedgy,  Contribution  a  I'etude  de  la  sanction  du  droit 
international,  29  E.  D.  I.,  113  et  seq^  ;  Lawrence,  Essays  on  Inter- 
national Law  (2d  ed.),  1-41;  Liszt,  6-8;  Maine,  26-53;  1  Eivier, 
18-26;  Walker,  Science,  1-40,  45-56;  Walker,  History,  1-19; 
Woolsey,  §§  26-29.  Perhaps  the  aptest  description  of  the  legal 
nature  of  International  law,  is  that  for  which  Sir  Frederick  Pollock 
stands  sponsor:  "  Customs  and  observances  in  an  imperfectly  organ- 
ized society  which  have  not  fully  acquired  the  character  of  law,  but 


XXIV  SYLLABUS. 

are  on  the  way  to  become  law"  (werdendes  Recht).  First  Book  of 
Jurisprudence,  13. 

4.  The  Nature  and  Sources  of  International  Law.     Cases,  19. 

Bluntschli,  11-19;  Boutils,  §§  5-70;  1  Calvo,  §§  1-40;  Creasy,  65- 
92;  Hall,  1-14;  1  Halleck,  ch.  II.;  Holtzendorff,  Introduction 
au  droit  des  gens,  1-76;  Les  sources  du  droit  des  gens,  79-147 
(1  Handbucb,  Fr.  ed.,  79-147);  Jellinek,  System  der  subjektiven 
offentlicbeu  Eecbte,  296-314;  Kaufmann,  Die  Kecbtskraft  des 
internationalen  Eecbtes,  1899;  Lawrence,  10-25,  91—110;  Liszt, 
9-12;  Maine,  1-25;  Maine,  Ancient  Law,  70-108;  1  Martens, 
1-20,  243-254;  Nys,  Origines  du  droit  international;  1  Philli- 
more,  cb.  III.;  Fomeroy,  25-44;  1  Rivier,  27-42;  Rivier,  L.  B., 
9-16;  Snow,  §  3;  Taylor,  §§  6-23,  30-36,  65-95,  105-115; 
1  Twiss,  145-177;  Walker,  History,  20-29;  Westlake,  cb.  VI.; 
Wbeaton,  cb.  I. 

5.  Historical  Sketch  of  International  Law.    Bonfils,  §§  71-146;  1  Calvo, 

1-1.37;  1  Halleck,  cb.  I.;  Holtzendorff,  Le  developpement  his- 
torique  des  relations  Internationales  jusqu'a  la  paix  de  Westpbalie 
(1648),  (1  Handbucb,  Fr.  ed.,  152-348);  Lawrence,  26-54;  Liszt, 
12-30;  1  Martens,  32-246;  Rivier,  L.  B.,  16-73;  Rivier,  Esquisse 
d'une  bistoire  litteraire  des  systemes  et  metbodes  du  droit  des  gens 
depuis  Grotius  jusqu'a  nos  jours  (1  Holtzendorff's  Handbucb,  Fr.  ed., 
351-494);  Taylor,  §§  37-48;  Walker,  History,  Vol.  I.,  to  Peace  of 
Westphalia ;  Westlake,  17-77.  Ward's  History  of  the  Law  of 
Nations  (to  time  of  Grotius),  1795,  is  still  useful,  and  Wheaton's 
History  of  the  Law  of  Nations  (to  1842),  1845,  has  not  been  dis- 
placed.    The  French  edition  is  later  and  therefore  preferable. 

6.  International  Law  is  a  Part  of  the   Law  of  States.     Cases,  6-10, 

13-22. 

Kent,  1,  note  a  ;  Liszt,  6;  Triepel,  Volkerrecbt  und  Landesreebt, 

1899;  Walker,  Science,  41-56;  Woolsey,  §  29. 

7.  The  Leading  Writers  on  International  Law.     Bonfils,  §§  147-153; 

1  Calvo,  27-32,  45-46,  51-55,  61-63,70-73,  101-120:  1  Halleck, 
ch.  I.;  Liszt,  31-33;  Rivier,  Esquisse  (see  §  5),  is  still  the  most 
satisfactory  enumeration  and  criticism  of  the  writers,  their  systems, 
relative  rank  and  worth;  Woolsey,  Appendix  1  (A  brief  selection 
of  works  and  documents  bearing  on  International  Law). 

8.  Private  International  Law  ;  or,  The  Conflict  of  Laws.    1  Calvo,  120- 

125;     Hall,     54;    2    Martens,     391-505;     Pbillimore,    Vol.     IV.; 


SYLLABUS.  XXV 

Woolsey,  §§  73,  74.  The  following  are  special  treatises  on  this 
subject :  Beale,  Cases  on  Conflict  of  Laws,  3  vols.,  1901-1902  (Vol. 
3,  -pp.  501-545,  contains  an  excellent  "Summary  of  Conflict  of 
Laws");  Minor,  Conflict  of  Laws,  1901;  Story,  Conflict  of  Laws, 
8th  ed.,  1883 ;  Westlake,  Private  International  Law,  3d  ed.,  1890 
(4th  edition  announced);  Wharton,  Conflict  of  Laws,  2d  ed.,  1881. 
Leading  works  in  foreign  languages  are  the  following:  Asser 
&  Rivier,  Elements  de  droit  international  prive,  1884;  v.  Bar, 
Theorie  und  Praxis  des  internationalen  Privatrechts,  2d  ed.,  1889 
(English  translation  entitled,  Private  International  Law,  by  G. 
R.  Gillespie,  1892)  ;  v.  Bar,  Lehrbuch  des  internationalen  Privat- 
und  Strafrechts,  ■  1892 ;  Despagnet,  Precis  de  droit  international 
prive,  3d  ed.,  1889;  Fiore,  Droit  international  prive  (French  trans- 
lation of  the  Italian  original,  by  Pradier-Fodere,  1875);  Laine's 
masterly  Introduction  au  droit  international  prive,  2  vols.,  1888, 
1892;  Savign}',  System  des  heutigen  romischen  Rechts,  Vol.  8, 
1849  (translated  by  W.  Guthrie,  as  Treatise  on  the  Conflict  of  Laws, 
and  the  Limits  of  their  Operation  in  respect  of  Place  and  Time, 
2d  ed.,  1880)  ;  Vareilles-Sommieres,  La  synthese  du  droit  inter- 
national priv6,  2  vols.,  1897;  Weiss,  Manuel  de  droit  international 
prive,  2d  ed.,  1898;  Zitelman,  Internationales  Privatrecbt,  2  vols., 
1897,  et  seq. 


PART  I. 

INTERNATIONAL   LAW  IN  TIME   OF  PEACE. 

I.  SovEKEiGx  States  —  De  Facto  States. 

(a)  Sovereign  States. 

9.  Sovereign  States  are  the  Subjects  or  Persons  of  International  Law. 

The  Republic  of  Honduras  v.  Soto,  Cases,  24. 

Bluntschli,  §§  17-27;  Bonfils,  §§  154-159;  Hall,  §  1;  Heffter,  §  15; 
Jellinek,  Recht  des  modernen  Staates,  348-319;  1  Jones,  518, 
2  lb.,  463;  Lawrence,  55;  Liszt,  34-40;  1  Martens,  307-311; 
1  Phillimore,  79;  1  Rivier,  45-54;  Snow,  §  4;  1  Twiss,  1-15;  D. 
Wheaton,    §  16. 

10.  Definition  and  Nature  of  Sovereign  States.  Yrisarri  v.  Clement, 
Cases,  23;  Texas  v.  White,  lb.,  25  ;  Keith  v.  Clark,  lb.,  28  ;  lb., 
notes,  36-37. 


XXVI  SYLLABUS. 

Bluntschli,  §§  18-21,  62-70  ;  Bonfils,  §§  160-164;  1  Calvo,  §  39; 
Creasj^  6,  93;  Heffter,  §§  15-16;  Jellinek,  System  der  subjektiven 
offeiitlichen  Eechte,  12-39 ;  Jellinek,  Reclit  des  modernen  Staates, 
115-161;  Lawrence,  56-90;  Liszt,  35-38  ;  Maine,  54-68;  1  Phil- 
limore,  81-85;  Pomeroj,  45-59;  Eivier,  L.  B.,  88-92;  Stubbs, 
Suzerainty:  Mediaeval  and  Modern,  25  Law  Magazine  and  Review, 
5tli  ser.,  413-452;  D.  Wheaton,  29-31;  L.  AVheaton,  31-33,  58; 
WooLsey,  34-36. 

11.  Distinction  between  Internal  and  External  Sovereignty  of  States. 
Bluntschli,  §  64  ;  Holland,  Jurisprudence,  47-49,  350-351,  373  ; 
Liszt,  52-71;  Snow,  §  5;  D.  ^Yheaton,  31;  L.  Wheaton,  35. 

12.  Internal  Changes  in  a  State  do  not  affect  its  standing  in  Inter- 
national Law.     Keith  v.  Clark,  Cases,  28. 

Creasy,  99-109;  Hall,  22-24;  Liszt,  40;  1  Phillimore,  202-212; 
Pomeioy,  69-78;  1  Pvivier,  62-63;  Eivier,  L.  B.,  94-95;  D. 
Wheaton,  33-34  ;  L.  Wheaton,  39  ;  Woolsey,  §§  38-39. 

13.  The  Fundamental  Rights  and  Duties  of  States.  Bluntschli,  §§  62- 
107,  378,  379;  Bonfils,  §§  235-332;  Hall,  §§  7-14  ;  1  Halleck, 
eh.  IV.;  Lawrence,  108-111;  Liszt,  52-71,  98-101;  Pillet,  Ee- 
cherches  sur  les  droits  fondamontaux  des  etats  dans  I'ordre  des 
rapports  internationals,  1899;  Pomeroy,  79-144;  1  Eivier,  255- 
266;  Eivier,  L.  B.,  174-180;  Snow,  §  8;  Taylor,  §§  117-119; 
D.   Wheaton,   §§  60-62  ;  L.  Wheaton,   115. 

14.  Classification  of  States:  "Centralized  States,"  "Personal  Union," 
"Real  Union,"  (Bundestaat),  "  Confederate  Union "  (Staatenbund), 
Protected  State,  Neutralized  State.     Cases,  45-53. 

Bluntschli,  §§  70-76;  Bonfils,  §§  165-194,  345-369;  1  Calvo, 
§§  44-77;  Creasy,  135-142;  Hall,  §  4;  1  Halleck,  67-74,  116- 
118 ;  Jellinek,  Die  Lehre  von  den  Staatenverbindungen,  1882 ; 
Jellinek,  Eecht  des  modernen  Staates,  674-719;  1  Jones,  76  ; 
Lawrence,  56-84;  Liszt,  41-52;  1  Phillimore,  94-101;  Pomeroy, 
60-69;  1  Eivier,  75-123;  Eivier,  L.  B.,  103-124;  Snow,  §  6; 
Taylor,  §§120  et  seq.;  1  Twiss,  16-144;  Westlake,  211-231;  D. 
Wheaton,   40-41,   73,  78,  82,   and  note  32  ;  L.  Wheaton,  71-76. 

15.  The  Equality  of  States.    The  Antelope,  Cases,  27  note. 
Bluntschli,  §  81  ;  Bonfils,  §§  272-278  ;  1  Halleck,  ch.  V.;  Heffter, 
§§    27-28  ;    Lawrence,  Essays,  208-233  ;   Liszt,  52-54  ;  Pomeroy, 
247-263;  1  Eivier,    123-131;   Eivier,   L.  B.,  124-128;  Westlake, 
80-109 ;  D.  Wheaton,  52  ;  L.  Wheaton,  58 ;  Woolsey,  §  52. 


SYLLABUS.  XXvii 

16.  Date  of  the  Commencement  of  States.  Bluntschli,  §29;  Bonfils, 
§§  195-213;  Hall,  §  20;  Heffter,  §§  23-25  ;  Jellinek,  Recht  des 
modernen  Staates,  239-258;  Lawrence,  84—88;  Liszt,  38;  1  Mar- 
tens, §§  63-66;  1  Rivier,  54-57;  D.  Wheaton,  41;  L.  Wheatou, 
46-47. 

17.  Effect  of  the  Recognition  of  a  New  State  by  the  Parent  State,  and 
by  Third  States.     Cases,  37-44. 

Bluntschli,  §  30;  Hall,  87-96;  1  Halleck,  79-88;  Hart,  208-209; 
Liszt,  39-40  .;  Penfield,  Recognition  of  a  New  State,  32  Am.  Law 
Review,  390-408;  1  Rivier,  57-61;  Snow,  §  8  ;  Taylor,  §§  146- 
159;  1  Wharton's  Digest,   522;  D.   Wheaton,  32. 

18.  When  is  the  Recognition  by  Third  States  of  a  New  State  claiming 
Independence,  proper  ?     Cases,  44-45,   note. 

Bluntschli,  §§31-35;  Creasy,  677-681;  Hall,  90-93;  Liszt,  40; 
2  Phillimore,  20-44;  D.  Wheaton,  41-46,  and  note  16;  L.  Wheaton, 
46-47. 

19.  Methods  of  Recognition.  —  The  Congo  State.     Cases,  37-44. 

Hall,  94-95,  and  note  ;  1  Jones,  100,  2  lb.,  85;  Fauchille,  L'An- 
nexion  du  Congo  a  la  Belgique,  2  R.  G.  D.  L,  400-439;  Moynier, 
La  Fondation  de  I'Etat  Independant  du  Congo,  1887.  Les  Fron- 
tieres  de  I'Etat  du  Congo,  1  R.  G.,  409-429. 

20.  The  Effect  of  a  Change  of  Sovereignty  upon  Public  Rights  and  Obli- 
gations. U.  S.  V.  Prioleau,  Cases,  85;  U.  S.  v.  Smith,  lb.,  89  ; 
Case  of  The  Texan  Bonds,  lb.,  94,  note  ;  opinions  of  Hall  and  Kent, 
lb.,  96,  note;  Terlinden  v.  Ames,  lb.,  436. 

Appleton,  Des  effets  de  I'annexion  sur  les  dettes  de  I'etat  demembre 
ou  annexe,  1892 ;  Creasy,  144-146 ;  Huber,  Die  Staatensuccession, 
1898 ;  Lariviere,  Des  consequences  des  transformations  territoriales 
des  etats  sur  les  traites  anterieurs,  1892 ;  Lawrence,  647-651 ; 
Liszt,  172-176  ;  1  Phillimore,  211 ;  1  Rivier,  69-75  ;  Rowe,  Polit- 
ical and  Legal  .Aspects  of  Change  of  Sovereignty,  41  Am.  Law 
Register,  N.  S.,  466-477 ;  Snow,  §  9 ;  D.  Wheaton,  42-49  ;  L. 
Wheaton,  48-53;  Woolsey,   §  38. 

21.  Effect  of  a  Change  of  Sovereignty  upon  Private  Rights.  U.  S. 
V.  Percheman,   Cases,  95  ;  U.  S.  v.   Repentigny,  lb.,  98. 

1  Jones,  5-18,  2  lb.,  463;  Liszt,  89. 

22.  Effect  of  a  Change  of  Sovereignty  upon  Laws.  Blankard  v.  Galdy, 
Cases,  104 ;  Com.  v.  Chapman,  Ih.,  note  106  ;  Chappell  v.  Jardine, 


XXVIU  SYLLABUS. 


lb.,   108  ;  Mortimer  v.  N.  Y.  Elevated  R.  R.  Co.,  Ih.,  Ill  ;  Mc- 

Kennon  v.  Winn,  lb.,   114. 

Magoon,  Military  Occupation,  25-28,  226. 


{b)    De  Facto  States. 

23.  Belligerent  Communities.  Thorington  v.  Smith,  Cases,  53  ;  Home 
Insurance  Co.'s  Case,  lb.,  59  ;  Legal  relation  of  the  de  facto  to  the 
parent  or  de  jure  State  as  regards  legislation,  administration,  and 
judicial  acts  of  the  former,  lb.,  61,  note;  The  Lilla,  lb.,  62,  note  ; 
Underhill  v.  Hernandez,  lb.,  62. 

Bluntschli,  §§  47-48;  Hall,  31-37;  1  Halleck,  79-86;  Liszt,  37, 
288;  Snow,  §  10;  Taylor,  §§  145-147;  Woolsey,  §  40. 

24.  Recognition  of  Belligerency.  Annual  Message  of  President  Grant, 
Dec.  7,  1875 ;  Cases,  758,  note. 

Bernard,  Neutrality  of  Great  Britain  during  the  American  Civil 
War,  1870,  106-117,  and  note;  Hall,  35-42  ;  Historicus  on  Recogni- 
tion, 1-37;  IJones,  51,2/6.,  38;  DeOlivart,  La  reconnaissance  des 
insurges  comme  belligerants,  28  R.  D.  I.,  100-103  ;  1  Wharton's 
Digest,  §  69;  D.  Wheaton,  note  15;  L.  Wlieaton,  40,  note; 
Woolsey,  §  41. 

25.  Have  Belligerent  Communities  any  Legal  Right  to  Recognition  by 
Sovereign  States?  Forms  of  Recognition.  Bluntschli,  §  512;  Bon- 
fils,  §§1045-1047;  Hall,  37-39;  Liszt,  157;  Pomeroy,  264-312; 
Taylor,  §§  148-152;  D.  Wheaton,  34,  note  15,  especially,  pp.  37-38. 

26.  Recognition  of  Confederate  States,  1861.  Pifield  v.  Ins.  Co.,  Cases, 
44,  note. 

Bernard,  Neutrality,  122-134  (135-150  for  documents) ;  Bluntschli 
in2R.  D.  L,  452-485;  Hall,  39-42;  Pomeroy,  289-295;  Taylor, 
§  15;  D.  Wheaton,  37,  note;  Woolsey,  §  180. 

27.  Succession  to  the  Rights  of  Belligerent  Communities.  U.  S.  v.  Pri- 
oleau,  Cases,  87  ;  U.  S.  v.  Smitli,  i7>.,89  ;  U.  S.  v.  McRae,  lb.,  89,  91 ; 
Titus  V.  U.  S.,  lb.,  94,  note. 

28.  The  Relations  of  a  Belligerent  Community  after  acquiring  Independ- 
ence to  the  Contract  Rights  and  Duties  of  the  Parent  State,  on  (1) 
Treaty  Obligations,  (2)  Property,  (3)  Debts.  Bluntsclili,  §§  47-48 ; 
Boulils,  §§  214-234;  Hall,  §§  27-28;  Heffter,  §  25;  Liszt,  172-176; 
Magoon,  177,  194,  529. 


SYLLABUS.  XXIX 

29.  Alleged  Right  of  the  United  States  in  the  British- American 
Fisheries. 

Geffcken,  La  question  des  pecheries,  22  R.  D.  I.,  217-233;  Hall,  99- 
100;  Hart,  206-208,  220-221;  Isliam,  The  Fishery  Question,  1887; 
1  Jones,  206,  2  Ih.,  183-184;  Liszt,  74,  255-258;  Pomeroy,  181, 
368-371 ;  Schuyler,  The  Fisheries  (Am.  Dip.,  404-420) ;  Taylor, 
§§  249-250;  s"^ Wharton's  Digest,  §  302. 

II.   The  Territorial  Property  of  a  State. 
(«)    Extent  and  Nature  of  Territorial  Property. 

30.  In  what  does  the  Territorial  Property  of  a  State  consist  ?  Bonfils, 
§§  482-519;  Hall,  §  30;  Jellinek,  Eecht  des  modernen  Staates, 
355-366;  1  Jones,  545;  Liszt,  71-83;  Snow,  §  11;  D.  Wheaton, 
§162. 

31.  The  Nature  of  the  Proprietary  Title  of  a  State  in  (1)  the  Land  owned 
by  Individuals,  (2)  Public  Lands,  (3)  Navy  Yards,  Arsenals,  etc.,  (4) 
Lakes,  Rivers,  Straits,  (5)  Marginal  Seas.  Bluntschli,  §§  276-277, 
296-310;  Hall,  §§30-46;  1  Halleck,ch.  VL;  Lawrence,  136-160; 
Liszt,  71-83;  Maine,  69-93;  Pomeroy,  145-190;  1  Rivier,  135- 
171;  Eivier,  L.  B.,  129-141;  1  Twiss,  228-235;  Westlake,  129- 
133;  Wharton's  Digest,  §§  1,  2,  310,  311 ;  D.  Wheaton,  §§  163-164. 


(&)    Aeq2iisition  of  Territory. 

32.  Modes  of  acquiring  Territory.  Jones  v.  U.  S.,  Cases,  pp.  39-40; 
U.  S.  V.  Percheman,  Ih.,  95;  Am.  Ins.  Co.  v.  Canter,  lb.,  657. 
Bluntschli,  §§  276-295;  Bonfils,  §§  532-571;  Hall,  §  31 ;  1  Hal- 
leck,  154;  Hart,  194-196;  Liszt,  83-90;  Pomeroy,  91-93;  1  Rivier, 
172-188;  Rivier,  L.  B.,  145-146;  Walker,  Manual,  26-34;  D. 
Wheaton,  §  161. 

33.  Title  to  Territory  based  on  Discovery.  Johnson  v.  Mcintosh, 
Cases,  71. 

Westlake,  134-160. 

34.  Title  to  Territory,  based  on  Prior  Discovery  of  the  Coast  and  Mouths 
of  Rivers,  upon  Occupation,  Exploration,  and  Contiguity.  (1)  The 
Oregon  Territory  (Foster's  American  Di})lomacy,  302-313,  corrected, 
as  most  American  accounts  must  be,  by  Bourne's,  "Legend  of  Mar- 
cus Whitman  "  in  Essays  in  Historical  Criticism,  1901,  pp.  1-109) ; 
Hall,    115-117;    Hart,    194-195;    1    Moore,    Int.    Arb.    196-213; 


XXX  SYLLABUS. 

Pomeroy,  98,  102,  111-114;  Taylor,  §§  99-102;  D.  Wheatoii,  250- 
255.  (2)  Delagoa  Bay  (Hall,  122;  5  Moore,  Int.  Arb.,  4984-4985). 
(3)    Texas  (Hall,  113-115). 

35.  Inchoate  Title  acquired  by  Discovery.  Occupation  to  give  Title  pre- 
supposes (1)  intent  to  occupy,  (2)  Continuous  Occupation,  (3)  a 
State  Act  or  Subsequent  Ratification  of  the  Act  by  the  State.  Blunt- 
schli,  §§  278-279;  I'.ontils,  §§  536-563;  Hall,  106-113;  Jeze,  ttnde 
sur  I'occupation,  1896;  Liszt,  90-92;  2  Moore,  Int.  Arb.,  1909- 
1922;  1  Phillimore,  329;  Pomeroy,  94-111;  1  Rivier,  188-197; 
Eivier,   L.   B.,   146-150;    1    Twiss,    191-206;    Westlake,   160-177. 

36.  Abandonment  of  Territory  once  occupied.  Santa  Lucia,  Hall,  120- 
121  ;  1  Phillimore,  368. 


ot 


Tendency  to  change  the  Law  of  Occupation.  —  Berlin  Conference, 
1885.     Bi.nfils,  §§  557-561;   Hall,  §  33*,  and  notes;  Liszt,  92. 


38.  Prescription  gives  Valid  Title  to  Territory  by  the  Rules  of  Interna- 
tional Law.  Rhode  Island  v.  Massachusetts,  4  How.  591;  Virginia 
V.  Tennessee,  148  U.  S.  503,  522-524,  and  authorities  there  cited. 
Bluntschli,  §  290;  Bonfils,  §  534;  Creasy,  249-255;  Hall,  §36, 
and  note;  1  Jones,  441 ;  2  lb.,  402;  4  Moore,  Int.  Arb.,  4179- 
420:5;  1  Phillimore,  353-368;  1  Rivier,  182-183;  Pomeroy,  119- 
131;  D.   Wheaton,  239,  note  101;  L.  Wheaton,  303. 

.39.  Acquisition  of  Territory  by  Accretion.  The  Aiina,  Cases,  74,  note ; 
C.  Cushing,  8  Op.  Atty.-Gen.  175. 

Bluntschli,  §§  294-295;  Bonfils,  §  533;  Creasy,  241-249;  Hall, 
125-127;  1  Phillimore,  342-345;  Pomeroy,  114-180;  Rivier,  179- 
180  ;  Rivier,  L.  B.,  145. 

40.  Acquisition  of  Territory  by  Conquest  or  Cession  :  the  Loss  of  Terri- 
tory. Harcourt  v.  Galliard,  Cases,  70  ;  U.  S.  v.  Perchenian,  lb., 
95;  Am.  Ins.  Co.  v.  Canter,  lb.,  657. 

Bluntschli,  §§  285-286;  Liszt,  67,  151;  1  Phillimore,  369-387; 
1  Rivier,  181-182,  197-217,  217-220;  Rivier,  L.  B.,  150-154, 
154-155. 


(c)    Acquisition  of  Rights  in  Foreign  Territory. 

41.  Servitudes  in  International  Law.  Bluntschli,  §§  353,  359;  Bon- 
fils, §§  3.38-344  (note  for  literature)  ;  Creasy,  255-259;  Hall,  166; 
Liszt,  67,  151;  1  Phillimore,  388-392;  1  Rivier,  258,  296-303. 


SYLLABUS.  XXxi 

42.  The  Navigation  of  Rivers.  (1)  The  Mississippi,  Cases,  132,  note; 
(2)  The  St.  Lawrence,  lb.,  132,  note;  (3)  European  Rivers,  lb., 
132,  note;  (4)  South  American  Rivers,  lb.,  132,  note;  (5)  African 
Rivers,  lb.,  132,  note. 

Bluntschli,  §§  311-315;  Bonfils,  264-270;  Hall,  136-140;  1  Hal- 
leck,  171-179;  Hart,  201;  Heffter,  §  77;  1  Jones,  392,  2  lb.,  359; 
Lawrence,  186-189;  Liszt,  206-213;  2  Martens,  345-361;  1  Philli- 
more,  223-247;  Pomeroy,  147-164;  1  Rivier,  221-229;  Rivier,  L. 
B.,  155-162;  Schuyler,  The  Free  Navigation  of  Rivers  and  Seas 
(Am.  Dip.,  265-366);  Taylor,  §§  233-241;  D.  Wheaton,  274-288; 
Woolsey,  79-83. 

43.  Protectorates  over  Semi-civilized  Peoples.     "Spheres  of  Influence." 

Bonfils,  §§  182-187,  558-562,  176  (note  for  literature  generally  on 
the  subject  of  pi'otectorates) ;  Hall,  §§  38*,  38**;  Hall,  Foreign 
Powers  and  Jurisdiction  of  the  British  Crown,  1894,  pp.  204-238; 
Hill,  The  Growth  and  Development  of  International  Law  in  Africa, 
16  Law  Quarterly  Review,  249-268;  Liszt,  73-74;  Westlake, 
174-189. 

{cT)  Boundaries. 

44.  In  the  United  States,  the  Political  Department  of  the  Government 
determines  what  are  the  Boundaries  under  Treaties.  Foster  v, 
Neilson,  Cases,  75;  U.  S.  v.  Texas,  lb.,  76,  note  1;  in  re  Cooper, 
lb.,  76,  note  1;  James  G.  Swan,  lb.,  76,  note  1. 

45.  The  Determination  of  River-Boundaries.  Handly  v.  Anthon}-^, 
Cases,  116;  Buttenuth  v.  St.  Louis  Bridge  Co.,  76.,  121;  Cooley  v. 
Golden,  lb.,  129;  The  Twee  Gebroeders,  lb.,  129,  note;  Opinion  of 
C.  Gushing,  1856,  8  Op.  Atty.-Gen.,  176. 

Bluntschli,  §§  298-300;  Bonfils,  §  487;  Liszt,  71;  1  Martens,  454- 
456;  1  Rivier,  165-171;  D.  Wheaton,  274. 

46.  Determination  of  Boundaries  in  the  Cases  of  Lakes  and  Mountains. 

Jilantschli,  §§  297,  301-303;  Bonfils,  §  487;  Hall,  §  38;  1  Mar- 
tens, 457-458. 

((?)    Territorial  Waters  of  a  State. 

47.  The  History  of  Attempts  to  appropriate  the  Seas,  or  Portions  of  them; 

the  contest  hetween  mare  clausum  and  mare  liberum.  Bluntschli, 
§§  304-309;  Bonfils,  §§  572-576;  1  Calvo,  §§  348-352;  2  Cauchy, 
Le  droit  maritime  international,  1862,  92-124  ;  Creasy,  22(5-231 ; 
Hall,   §  40;    Liszt,  196-197;    1  Martens,  491-496;    1  Phillimore, 


XXXll  SYLLABUS. 

247-256;  Pomeroy,  182-190;  1  Eivier,  234-239;  Eivier,  H.  B., 
166-168;  Snow,  §  12;  Taylor,  §§  242-246;  1  Twiss,  284-291; 
Walker,  Science,   163-171;  D.  Wheaton,  note  113. 

48.  The  Origin  of  the  Rule  limiting  the  Territorial  Right  of  a  State  in  the 

Sea  to  a  Marine  League  from  the  Shore :  "  Terrae  dominium  finitur 
ubi  finitur  armorum  vis."  The  Queen  v.  Keyn,  Cases,  154. 
Bonfils,  §§  490-494;  1  Calvo,  §§  354-356;  Creasy,  233-240;  Hall, 
§  41;  1  Halleck,  157;  1  Phillimore,  274  et  seq.\  Pomeroy,  176- 
180;  Walker,  Science,  171-175;  Wharton's  Digest,  §  32;  Woolsey, 
68-70. 

49.  Bodies  of  Water  more  than  Six  Miles  wide  : 

(«)  Straits  and  Lalxes,  more  tlian  six  miles  wide.  —  U.  S.  v. 
Eodgers,  Cases,  132;  The  Sound  Dues,  D.  Wheaton,  264-267; 
Snow's  Am.  Dip.,  124-127;  Schuyler,  Am.  Dip.,  306-316;  The 
Bosphorus  and  Dardanelles,  D.  Wheaton,  263-264,  273-274,  note 
111;   Schuyler's  Am.  Dip.,  317-318. 

(h)  Bays  and  Gulfs. — The  AUeganean,  Cases,  143;  Dunham  v. 
Lamphere,  lb.,  153,  note;  The  Schooner  Washington,  Ih.,  153, 
note;  Mahler  v.  Transportation  Co.,  Ih.,  1.53,  note;  Manchester  v. 
Massachusetts,  Ih.,  153,  note;  Shively  v.  Bowlbj^,  Ih.,  153,  note. 
Bluntschli,  §  309;  Bonfils,  §§  495-505,  516;  1  Calvo,  §§  357-374; 
Hall,  161-164;  1  Halleck,  165-172;  Liszt,  76-197;  Perels,  Manuel 
du  droit  maritime  international,  1884,  42-46;  Pomeroy,  164-176; 
1  Eivier,  143-159;  Eivier,  H.  B.,  133-137;  Taylor,  §§  229-231; 
Wharton's  Digest,  §§  28-29;  Woolsey,  76-79. 

50.  Interoceanic    Canals.  —  Suez    Canal,    1869    (neutralized,    1888) ; 

Corinth,  1893;  Kiel,  1896;   Panama,  .     Bonfils,  §§  506-515; 

1  Calvo,  §§  376-380;  De  Bustamante,  Le  canal  de  Panama,  et  le 
droit  international,  27  E.  D.  I.,  112,  223;  Hart,  219-220;  Holland, 
Studies,  270-293;  1  Jones,  410,  530,  2  Ih.,  476;  Lawrence,  The 
Suez  Canal  in  International  Law  (Studies,  41-88),  The  Panama 
Canal  and  the  Clayton-Bulwer  Treaty  {Ih.,  89-162) ;  Liszt,  75, 
213-215  (authorities  cited,  213,  note);  1  Eivier,  231,  2  Ih.,  395; 
Eivier,  H.  B.,  163-166 ;  B.  Wheaton,  §  205  (e.  d.  e.). 

III.    Territorial  Jurisdiction. 

(a)    Doctrine  of  Exterritoriality.  —  Exception  to  the  Rule  of  Exclusive 
Territorial  Jurisdiction. 

51.  Sovereigns  may  sue  in  Courts  of  Foreign  State.  Eepublic  of 
Mexico  V.  Arrangoiz,  Cases,  170;  Priuleau  v.  U.  S.,  Ih.,  173; 
U.  S.  V.  Wagner,  Ih.,  175 ;  The  Sapphire,  Ih.,  178. 


SYLLABUS.  XXxiii 

52.  Sovereigns  are  exempt  in  (1)  their  Persons,  (2)  in  their  Official 
Representatives,  and  (3)  in  their  Property  from  the  Jurisdiction  of 
Foreign  Courts  of  Law.  De  Huber  v.  Queen  of  Tortugal,  Cases,  ISO; 
Strousberg  v.  Costa  Rica,  Ib.^  181,  note;  Migbell  v.  Sultan  of 
Jahore,  lb.,  181,  note;  So.  African  Eep.  v.  Co.  Fr. -Beige,  lb.,  181, 
note;  Underbill  v.  Hernandez,  lb.,  G2 ;  Yavasseur  v.  Krupp,  lb., 
182;  Beers  v.  Arkansas,  lb.,  186;  for  other  cases,  see  lb.,  189, 
note. 

Bluntscbli,  §§  129-134;  Bonfils,  632-647;  3  Calvo,  §§  1451- 
1479;  Hall,  §§  47-49;  Heffter,  §§  48-57;  2  Jones,  12,  463;  Liszt, 
106-109;  2  Pbillimore,  133-155;  1  Kivier,  411-425;  Rivier, 
L.   B.,   249-256;   Snow,   §  20;  Taylor,   §  184. 

53.  The  Right  of  Legation :  Rights,  Privileges,  and  Duties  of  Diplo- 
matic Representatives.  Bluntselili,  §§  159-240;  Bonfils,  §§  652- 
702,  722-732;  3  Calvo,  165-215,  295-307,  323-336;  Hiibler,  Die 
Magistraturen  des  volkerrechtlichen  Verkehrs,  1900;  Lisboa,  Ex- 
territorialite  et  immunites  des  agents  diplomatiques,  1  R.  T>.  I.  (2d 
ser.),  354-367;  Liszt,  109-118;  2  Pbillimore,  176-201,  246-264; 
Pomeroy,  396-454;  1  Rivier,  429-488;  Rivier,  H.  B.,  257-280; 
Schuyler,  Diplomatic  Officials  (Am.  Dip.,  pp.  105-190) ;  Snow, 
§21;  Taylor,  §§  273-300,  303-304,  305-306,  313-324;  1  Twiss, 
333-381 ;    Woolsey,  §§  86-98. 

64.   Immunities  of  Diplomatic  Agents : 

(a)  From  Cviminal  Jiirlsdirfio7i.  —  (1)  Case  of  Bishop  of  Ross, 
1571,  Cases,  191,  note;  (2)  Case  of  Mendoza,  1584,  lb.,  191,  note; 
(3)  Case  of  Da  Sa,  1653,  lb.,  191,  note;  (4)  Case  of  Gyllenborg, 
1717,  lb.,  192,  note;  (5)  Case  of  Prince  Cellamare,  1718,  lb.,  192, 
note. 

Bluntscbli,  §§  186,  141, 142  ;  Bonfils,  §§  703-711 ;  3  Calvo,  §§  1511- 
1520;  Hall,  178-180;  1  Halleck,  332-339;  2  Pbillimore,  199-218; 
1  Rivier,  488-493;  Rivier,  L.  B.,  280. 

66,  Immunities  of  Diplomatic  Agents : 

{b)  Fxemjjtioii  from.  Civil  Jurisdiction.  —  (1)  Case  of  Peter  the 
Great's  Ambassador,  1708,  Cases,  4,  6,  192,  note ;  (2)  Case  of  Baron 
de  Wrecb,  1772,  lb.,  192,  note;  (3)  Case  of  Wheaton,  1839,  lb., 
192,  note;  (4)  Case  of  Dillon,  1854,  lb.,  192,  note;  (5)  Case  of 
Dubois,  1866,  lb.,  192,  note;  Heatbfield  v.  Chilton,  lb.,  189; 
Parkinson  v.  Potter,  lb.,  192;  in  re  Baiz,  lb.,  197;  Wilson  v.  Blanco, 
lb.,  206;  New  Chile  Mining  Co.  v.  Blanco,  lb.,  207,  note;  Dupont 
V.  Picbon,  lb.,  208,  note. 


XXXIV  SYLLABUS. 

Bluntschli,  §§  135-153;  Bonfils,  §§  712-721;  3  Calvo,  §§  1506- 
1510;  Hall,  180-188;  2  Phillimore,  219-240;  1  Rivier,  439-518; 
Rivier,  H.  B.,  283-292;  D.  Wheaton,  299-320  (especially  Dana's 
notes,  nos.  125-131)  ;   L.  Wheaton,  392-416. 

56.  Armed  Forces  and  Ships  of  War  in  Foreign  Territory  are  exempt 
from  Local  Jurisdiction.  The  Schooner  Exchange  v.  M'Faddon, 
Cases,  208;  The  Constitution,  lb.,  218;  Coleman  v.  Tennessee,  lb., 
212,  note;  Neal  Dow  v.  Johnson,  lb.,  212,  note. 

Bluntschli,  §  321;  Bonfils,  §§  614-623;  3  Calvo,  §§  1550-1560; 
Ferber,  Internationale  liechtsverhaltnisse  der  Kriegs-  und  Handels- 
schiffe,  im  Krieg  und  Frieden,  1895;  Hall,  §§  54-57;  1  Halleck, 
215-230-;  Lawrence,  222-226;  Liszt,  78,  82,  194-196;  Morse, 
Status  of  Public  Vessel  in  Foreign  Waters,  22  Wash.  L.  Rep.  707 ; 
1  Phillimore,  476-483;  Pomeroy,  209-220;  1  Rivier,  156,  330- 
335;  Snow,  §  23;  Taylor,  §§  253-261;  Twiss,  Exterritoriality  of 
Public  Ships  of  War  (Law  Magazine  and  Review,  1876)  ;  Whar- 
ton's Digest,  §  36;  D.  Wheaton,  §  100,  notes,  nos.  61  and  63. 

57.  Public  Ships  other  than  Men-of-war  are  likewise  exempt  from 
Process  in  Foreign  Ports.  The  Farlement  Beige,  Cases,  220,  and 
note;  Vavasseur  v.  Krupp,  lb..,  182,  and  note  1,  186. 

Bonfils,  §  629;  Hall,  §§  44,  57*:  Liszt,  82. 

58.  Merchant  Vessels  do  not,  as  a  Rule,  enjoy  Exemption  from  Local  Juris- 
diction in  Foreign  Ports :  The  exemption,  if  it  exist,  is  the  result  of 
a  special  custom  based  upon  a  tacit  or  express  renunciation  of  terri- 
torial sovereignty.  Wildenhus  Case,  Cases,  227 ;  The  Newton  and 
The  Sally  (1  Ortolan,  Diplomatie  de  la  Mer,  450),  lb.,  227;  Case 
of  Jally  (1  Ortolan,  lb.,  455),  lb.,  229;  The  Anemone,  lb.,  228, 
note;  Ellis  v.  Mitchell,  lb.,  234;  in  re  Ross,  lb.,  238;  The  Creole, 
lb.,  252,  255,  note;  Other  Cases,  lb.,  233,  note. 

Bluntschli,  §§  317-320,  322;  Bonfils,  §§  595-606,  624-629;  1 
Calvo,  §  474;  Hall,  §§  58-60;  1  Halleck,  230-232;  Liszt,  75,  78- 
81 ;  A.  P.  Morse,  Competence  de  la  jurisdiction  locale  a  I'egard  des 
navires  de  commerce  etrangers,  18  J.  I.  P.,  751,  1088;  1  Philli- 
more, 483-487 ;  Pomeroy,  220-224;  Snow,  §  26;  Taylor,  §§  263-271. 

59.  The  Fiction  of  Exterritoriality,  —  its  Origin  and  Purpose  explained 
and  criticised.  Hall,  §  57;  Historicus,  201-212;  Liszt,  70-71, 
114-115;  I'ietri,  Etude  critique  sur  la  fiction  d'exterritorialite, 
1895;  Piggott,  Exterritoriality,  1892. 


SYLLABUS.  XXXV 

(b)     Right  of  Asylum. 

60.  Legations  should  not  and  do  not,  as  a  Rule,  grant  Asylum  either  to 
Political  Refugees  or  to  Fugitives  from  Justice.  Exception  in  the 
Case  of  Spanish-American  States.  Duke  of  Ripperda,  1726,  Cases, 
257,  note;  Springer's  Case,  1747,  lb.,  258,  note;  United  States 
V.  Jeffers,  lb.,  256. 

Bluntschli,  §§  151,  200,  201;  Bonfils,  §§  696-698;  Gilbert  in  15 
Harvard  Law  Rev.,  118-140;  Hall,  186,  §52;  Liszt,  116;  J.  B. 
Moore,  Asylum  in  Legations  and  Consulates  and  in  Vessels,  7  Pol. 
Sc.  Quart.,  1,  197,  397;  A.  P.  Morse,  So-called  Right  of  Asylum 
in  Legations,  45  Alb.  L.  J.,  311;  1  Rivier,  499-502;  Snow,  §  27; 
Taylor,  §§  311-312. 

61.  Sound  Principle,  if  not  Practice,  would  seem  to  deny  to  Ships  of 
War  the  Right  to  grant  Asylum  to  Political  Refugees.  It  is,  how- 
ever, Common  Practice  in  Spanish-American  Waters.  (2)  Forbes  v. 
Cochrane,  Cases,  258;  (1)  Lord  Stowell's  Opinion  in  the  Case  of 
John  Brown,  1820,  jR>.,  264,  note;  Admiral  de  Gama's  Case,  1894, 
1  R.  D.  J.  P.,  273  et  seq. ;  Martens-Ferrao  in  26  R.  D.  I.,  378; 
Fugitive  Slaves  and  Other  Cases,  Cases,  255,  note. 

Bonfils,  §  622;  Hall,  203-204;  1  Halleck,  228-230;  Lawrence, 
226-229;  Maine,  86-88;  Taylor,  §§  259,  260. 

62.  Merchant  Ships,  not  being  exempt  by  International  Law  from  the 
Jurisdiction  of  the  Foreign  Port,  cannot  properly  grant  Asylum  to 
Political  or  other  Refugees.  United  States  v.  Diekelman,  Cases, 
264;  Sotelo's  Case,  lb.,  273,  note;  Lord  Aberdeen's  Opinion,  lb., 
273,  note;  Gomez'  Case,  lb.,  274,  note;  Barrundia's  Case,  76.,  275, 
note  ;  Bonfils,  328-330 ;  Coudert,  Le  droit  de  refuge  a  bord  d'un 
navire  etranger,  23  Journal  de  Droit,  Int.  Prive,  780;  Lawrence, 
227-228  ;  J.  B.  Moore,  in  Political  Science  Quarterly,  1892  ;  Taylor, 
§  271. 


(c)     Other  Questions  of  Territorial  Jurisdiction, 

63.    Jurisdiction   over  Passing  Vessels.     The  Queen  v.  Keyn,  Cases, 
154. 

1  Jones,  284 ;  Foster  in  11  Am.  Law  R.,  625 ;  Hall,  §  59.  and 
notes;  Liszt,  76-81;  1  Rivier,  150;  Schlicking,  Das  Kiistenmeer 
im  internationalen  Rechte,  1897. 


XXXVl  SYLLABUS. 

6i.  Are  Aliens  exempt  from  Military  Duty  ?  Bluntschli,  §  391;  Bonfils, 
§  445 ;  Hall,  §  61,  and  note  2 ;  Liszt,  69 ;  1  Kivier,  304-306 ; 
6  Richardson's  Messages  and  Papers,  168,  180 ;  Koclie,  15  J.  I.  P., 
731;  Taylor,  §  467;  Wharton's  Digest,  §  202. 

Co.  Are  Offences  committed  by  Citizens  or  Foreigners,  beyond  the 
Limits  of  a  State,  subject  to  the  Jurisdiction  of  its  Courts? 
U.  S.  V.  Davis,  Cases,  294;  State  v.  Wyckoff,  10.,  296;  State  v. 
Carter,  lb.,  298,  note;  State  v.  Knight,  lb.,  300,  note;  Common- 
wealth V.  Macloon,  lb.,  300,  note;  Commonwealth  v.  Blanding, 
/^.,  300,  note;  Cutting's  Case,  lb.,  301;  United  States  v.  Smiley, 
lb.,  302;  Other  Cases  and  Opinions,  lb.,  304,  note. 
Bonfils,  §§  436-438  ;  Diena,  Des  conflits  de  legislation  a  I'egard  des 
delits  commis  a  I'etranger,  20  J,  I.  P.,  24;  Fiore,  Delits  commis 
a  I'etranger,  11  R.  D.  I.,  302 ;  Fusiiiato,  Des  delits  commis  a 
I'etranger,  19  J.  I.  P.,  56;  Gamboa,  L'Aifaire  Cutting  (Mexican 
view),  22  R.  D.  I.,  234-250;  Hall,  221-223;  Heffter,  §  36; 
2  Jones,  262;  1  jNIartens,  §§  85-86;  Moore,  Report  on  the  Cutting 
Case,  1887 ;  1  Rivier,  271,  867  ;  Rolin,  L' Affaire  Cutting,  20  R. 
D.  I.,  557-577;  Taylor,  §§  194-197;  ^Yharton,  Conflict  of  Laws, 
2d  ed.,  §§  809-813  ;  Philosophy  of  Criminal  Law,  309  et  seq. 

66.  Criminal  Jurisdiction  of  State  Courts  in  the  United  States,  U.  S.  v. 
Bevans,  1818,  3  Wheat.  336  (at  p.  386). 

67.  Extradition  of  Fugitives  from  Justice :  (1)  is,  in  International  Law, 
a  Conventional  not  a  Moral  Duty ;  it  does  not  exist  in  the  Absence 
of  Treaty  Stipulations ;  ( 2 1  it  is,  in  the  United  States,  strictly  and 
exclusively  a  Federal  Question  ;  (3;  the  Person  extradited  is  triable 
for  the  Offence  for  which  he  was  extradited,  but  for  no  other, 
U.  S.  V.  Rauscher,  Cases,  274  ;  Case  of  Arguelles  (1  Moore  on 
Extradition,  33),  Cases,  282,  note  ;  Ex  jxirte  Holmes  (1  Moore. 
55  58),  lb.,  282,  note  ;  Winslow's  Case  (1  Moore,  196,  212),  lb., 
282,  note. 

68.  As  a  Person  is  extradited  for  the  Commission  of  a  Conventional 
Crime,  the  Nationality  of  the  Criminal  is  clearly  immaterial ;  how- 
ever, to  prevent  misunderstandings,  it  is  customary  to  exclude 
citizens  of  the  contracting  States  from  the  operation  of  the  provi- 
sion of  the  treaty.  Case  of  Trimble  (1  Moore,  166,  152-193), 
Cases,  293,  note. 

09.  States  do  not,  as  a  Rule,  surrender  Persons  charged  with  Political 
or  Military  Offences.     I)i  re  Cast  ion  i,   Cases,    285  ;    in  re   Ezeta, 


I 


SYLLABUS.  XXXvii 

lb.,  293,  note  ;  Burley's  Case  (1  Moore,  319),  Ih.,  293,  note  ;  St. 
Alban's  Raid  (1  Moore,  322),  Ik,  293,  note  ;  Cazo's  Case  (1  Moore, 
324),  Ik,  293,  note. 

De  Hart,  The  Extradition  of  Political  Offenders,  1  Law  Quarterly 
Review,  177-187. 

70.  Extradition,  termed  "Inter-state  Rendition,"  obtains  between  the 
Members  of  the  American  Union ;  it  is,  however,  a  "  moral "  as 
disting^uished  from  a  "  leg^al "  duty.  It  differs  from  the  extradition 
of  the  Law  of  Nations  in  that  the  person  rendered  or  delivered 
up  may  properly  be  tried  for  and  convicted  of  a  crime  other  than 
that  for  which  he  was  surrendered.  State  v.  Patterson,  Cases, 
283,  and  note  p.  285  for  other  cases. 

71.  Leadings  Authorities  and  References  on  Extradition:  v.  Bar,  Lehr- 
buch  des  internationalen  Privat- iind  Straf-reclits,  1892;  Bernard, 
Traite  theorique  et  pratique  de  I'extradition,  2d  ed.,  1890; 
Bellot,  Traite  de  I'extradition,  1874  ;  Bluntschli,  §§  394-401  ; 
Bonfils,  §§  455-481  ;  2  Calvo,  §§  949-1071  ;  Clarke,  Treatise  on 
the  Law  of  Extradition,  3d  ed.,  1888;  Hall,  60-61  :  1  Halleck, 
2.35-239,  257-268 ;  Heffter,  §  63  ;  1  Jones,  199-202,  2  Ik,  176- 
177;  Lammasch,  Auslieferungspflicht  und  Asylrecht,  1887;  Lara- 
mascli,  Rechtshilfe  und  Axislieferungsvertrage  (3  Holzendorff,  H. 
B.,  345-579);  Lawrence,  233-240;  Liszt,  242-246;  3  Martens, 
2-116  ;  Martitz,  Internationale  Rechts  hilfe  in  Strafsachen,  1887, 
1897;  Moore,  Treatise  on  Extradition  and  Interstate  Rendition, 
1891  ;  1  Pliilliraore,  515-552  ;  Pomeroy,  235-242  ;  1  Rivier,  348- 
357  ;  A.  Rolin,  Du  principe  de  la  non-extradition  en  matiere  de 
delits  politiques,  24  R.  D.  T.,  17-38  ;  La  repression  des  attentats 
anarchistes,  26  lb.,  125-152  ;  and  articles  in  15  lb.,  147-166,  254- 
282,  19  lb.,  545-580;  Spear,  The  Law  of  Extradition,  2d  ed., 
1884  ;  De  Stieglitz,  Etude  sur  I'extradition  des  criminels,  1883  ; 
Taylor,  §§  205-212;  1  Twiss,  405-417;  D.  Wheaton,  180-191, 
and  notes;  Woolsey,  111-117. 

72.  Extraterritorial  Acts  of  Persons  by  Order  of  their  Government. 

Buron  V.  Dennian,  Cases,  305,  and  note  307  ;  The  Holla,  lb., 
309,  note  ;   Case  of   McLeod,   lb.,  319,   note. 

Hall,  §  65;  Liszt,  177-180;  Snow,  §  21;  Taylor,  §  131;  L. 
Wheaton,  189,  note. 

73.  Extraterritorial  Acts  of  a  State  in  Self-defence.  Commonwealth  v. 
Blodgett,  Cases,  308  ;  The   Caroline,  Ik,   67,  319,  note  ;   (1  Jones, 


XXXVlll  SYLLABUS. 

263);    Seizure  of  St.    Marks,   lb.,   320,  note;    The    Virginius,   lb., 

320,  note. 

Case  of  The    Virginius,  3  L.  Mag.  and  Rev.  N.  S.,  lb.,  78,  609; 

1  Jones,  262;  Int.  Law  of  The    Virginius,  lb.,  56;  L.  T.,  69,  263; 

8  Am.    Law.   Rev.,    470;  Bonfils,    §242;    Hall,  §§83-87;   Liszt, 

182-184;  Taylor,  §§  401-409;  Wharton's  Digest,  §  50;  Woolsey. 

366-370. 

74.  Responsibility  for  Injury  to  Foreigners  by  Civil  Commotions  and 
Mob-violence.  New  Orleans  v.  Abbagnato,  Cases,  320  ;  New 
Orleans  Riot,  1851  (2  Wharton's  Digest,  600),  New  Orleans  Mob, 
1891,  Cases,  329,  note  ;  L'Affaire  d'Aigues-Mortes  (1  R.  D.  I.  P., 
171-178). 

Bar  in  R.  D.  I.,  2ds.,  Vol.  1,  464-481;  Bluntschli,  §§  379-380,  bis  ; 
Bonfils,  §§  324-332;  Bryce  in  New  Review,  1891;  3  Cairo,  142- 
156;  Despagnet,  Les  difficultes  Internationales  venant  de  la  consti- 
tution de  certains  etats,  2  R.  D.  I.  P.,  184-199  ;  Hall,  226-231 ; 
Huffcut,  International  Liability  for  Mob  Injuries,  2  Am,  Acad. 
Pol.  &  Soc.  Sci.,  69  ;  2  Jones,  342,  1  Jones,  National  Responsi- 
bility for  Injuries  to  Foreigners,  49  L.  T.,  84;  Liszt,  180-182; 
Mitchell,  International  Liability  for  Mob  Injuries,  34  Am.  Law 
Rev.,  709-721;   Snow,  §  22;  Taylor,  §§  129-130,  215-216. 

75.  Is  the  Jurisdiction  of  a  State  over  its  Citizens  and  Property  on  the 
High  Seas  exclusive  ?  Bluntschli,  §§  317-319  ;  Bonfils,  §§  607-613  ; 
Hall,  §  77;  2  Jones,  211;  Lawrence,  205-208  ;  Liszt,  82;  1  Mar- 
tens, 496-497;  Snow,  §  23;  Taylor,  §  262;  D.  Wheaton,  §§  108- 
109. 

76.  Theory  of  the  Territoriality  of  Merchant  Vessels.  Hall,  258-267  ; 
Heffter,  §  78  ;  Historicus,  199-212  ;  Liszt,  82  ;  2  Martens,  336 ; 
Pomeroy,  220-222 ;  1  Rivier,  140,  240  ;  Taylor,  §  263 ;  Walker, 
Manual,  53-55  ;  Woolsey,  §  58. 

77.  Impressment  of  Seamen.  Foster,  Century  Am.  Dip.,  235-238 ; 
Hart,  203-204 ;  Schurz,  Clay,  Vol.  I.,  pp.  70-96  ;  Walker,  Manual, 
54-55;  3  Wharton's  Digest,  §  331;  D.  Wheaton,  §§  108-109,  and 
note  67. 

78.  Jurisdiction  over  Merchant  Vessels  on  the  High  Seas.  Wilson  v. 
McNamee,  Cases,  329;  Crapo  v.  Kelly,  Jb.,  331,  note;  Regina  v. 
Anderson,  lb.,  331,  and  note,  336;  Regina  v.  Lesley,  lb.,  337;  The 
Belgenland,  lb.,  338.    See  also  Cassidy  v.  U.  S.,  1883  (Second  Court 


SYLLABUS.  XXxix 

of  Commissioners  of  Alabama  Claims,  no.  144),  5  Moore,  Int.  Arb., 
4G72;  The  Costa  Rica  Packet,  1897,  o  Moore,  Int.  Arb.,  4948-4953. 
Snow,  §  24. 

79.  Municipal  Seisures  beyond  the  Three-mile  Limit.  Church  v. 
Hubbart,  Cases,  343,  note  ;  The  Rata,  lb.,  344,  note;  Other  ('ases, 
lb.,  344,  note  1;  Act  of  Congress,  March  2,  1797,  §  27;  Phelp's 
Argument  before  Behring  Sea  Tribunal  (Am.  Case,  150). 
Liszt,  200;  1  Kivier,  151;  Snow,  §26;  Wharton's  Digest,  10.^, 
106,109-112;  B.  Wheaton,    §  179  a;  D.  Wheaton,  258,    note,  108. 

80.  Piracy.  —  Definition  and  Character  of  Piracy  jure  gentium.  Opinion 
of  Sir  L.  Jenkins,  Cases,  345;  United  States  v.  Smith,  lb.,  lo; 
The  Magellan  Rirate.s,  lb.,  351;  The  Cases  of  The  Anna,  1895, 
The  Frosjyer-Corlin,  1896  (4  R.  D.  I.  P.,  425-427). 
Bluntschli,  §§  34.3-352;  Bonfils,  §§  594-595;  1  Calvo,  §§  485-495; 
Hall,  §  81;  1  Jones,  429,  2  lb.,  392;  Liszt,  201-203;  1  Philli- 
more,  489  et  seq.  ;  Pomeroy,  224-229  ;  1  Rivier,  248-251 ;  Rivier, 
L.  B.,173;  Schuyler,  The  Piratical  Barbary  Powers  (Am.  Dip., 
193-232)  ;  Snow,  §  27 ;  Taylor,  §  188  ;  Walker,  Manual,  55-60  ; 
L.  W^heaton,  246,   note,  no.   79  ;  Woolsey,    §   144. 

81.  May  Rebels  and  Insurgents  be  regarded  as  Pirates?  Piracy  by 
Municipal  Law.  United  States  v.  The  Ambrose  Light,  Cases,  346  ; 
United  States  v.  Baker,  lb.,  350,  note  1;  Golden  Rocket  Cases, 
lb.,  350,  note  1 ;  Fifield  v.  Insurance  Co.,  lb.,  350,  note  1  ;  Other 
Cases,  lb.,  351,  note. 

1  Calvo,  §§  496-512;  Hall,  §  82;  1  Halleck,  79-84;  Holland, 
Studies  in  Int.  Law",  159-160  ;  Insurgents  not  Pirates,  32  Alb. 
L.  J.,  65;  Lawrence,  209-219;  Penfield,  International  Piracy  in 
Time  of  War,  North  Am.  Review  (July),  1898;  Taylor,  §189; 
3  Wharton's  Digest,  469;  Wharton  in  33  Alb.  L.  J.,  125;  D. 
W^heaton,  196,  note ;  Woolsey,  §  145 ;  Wright,  Recognition  of 
Insurgents  as  Belligerents  and  Status  of  Insurgent  Cruisers,  1  Pa. 
Law  Ser.,  491. 

82.  The  Slave  Trade  is  not  Piracy  jure  gentium.  Le  Louis,  Cases, 
352;  Other  Cases,  lb.,  369,  note  1. 

Bluntschli,  §§  351-352;  Bonfds,  §§  398-409;  Creasy,  259-277; 
6  Calvo,  §§  2996-3003  ;  1  Jones,  512;  2  lb.,  456;  Lawrence,  214- 
219 ;  Liszt,  266-271 ;  De  IMontardy,  La  traite  et  le  droit  interna- 
tional, 1899;  1  Phillimore,  402-442;  Pomeroy,  229-230;  1  Rivier, 
374-379 ;  Taylor,  §  190 ;  Walker,  Manual,  60-65  ;  D.  Wheaton, 
§§  125-133  and  notes,  85-89;  Woolsey,  §  146. 


xl  SYLLABUS. 


V.    Intekyentiox. 

83.  Character  and  Conditions  of  Intervention.  Bluntschli,  §§  68-69, 
431-441;  474-480;  Bonfils,  §§295-323;  Bourgeois,  Le  Principe 
de  non-intervention,  4  R.  D.  I.  P.,  745;  Creasy,  278-296;  de 
rioeckher,  De  I'intervention  en  droit  international,  1896  ;  Cover, 
Public  Intervention,  20  L.  Mag.  &  Eev.,  4tli  s.,  259;  Hall,  297- 
299;  Heffter,  §§  44-46;  Lawrence,  115-117;  1  Martens,  §  76; 
1  Phillimore,  553-638;  Historicus,  14,  41 :  1  Jones,  266;  Liszt,  56- 
59,  277-279 ;  3  Moore,  Int.  Arb.,  2313-2447 ;  Payn,  Intervention 
among  States,  26  Law  jNlagazine  and  Review,  5th  ser.  176-201 ; 
Pomeroy,  242-245;  1  Eivier,  389-404;  Rivier,  L.  B.,  243-247; 
Snow,  §  28;  Taylor,  §§  81-90;  1  Wharton's  Digest,  §  45;  D. 
"Wheaton,  §  63. 

84.  Intervention  on  the  Ground  of  Self-preservation  for  the  Protection 
of  (1)  Institutions,  (2)  Good  Order,  (3)  the  External  Safety  of  the 
Intervening  State.  Creasy,  297-308;  Hall,  299-301;  Lawrence, 
117-135,  652-666;  Pomeroy,  245-246;  Taylor,  §§410-430. 

85.  Intervention  against  Illegal  or  Immoral  Acts.  Case  of  Greece, 
1826:  Bulgaria,  1876;  Cuba,  1898  ;  China,  1900.  Hall,  302-3U6: 
Hart,  Century  of  Cuban  Diplomacy  (Foundations  of  American 
Foreign  Policy,  108-133);  Liszt,  58,  283;  Taylor,  §§  416-419 
(See  the  Spanish  side  of  the  question  by  De  Olivart,  4  R.  D.  I.  P., 
577;  5  lb.,  358,  449;  7  lb.,  541;  9  lb.,  161);  Cbina  and  Inter- 
national Questions,  192  Edinburgh  Rev.,  450  ;  Jellinek,  China  and 
International  Law,  35  Am.  Law  Rev.,  56-62 ;  Lapradelle,  La  ques- 
tion chinoise,  8  R.  D.  I.  P.,  272-340  ;  9  lb.,  49-115  et  seq. 

86.  Intervention  under  a  Treaty  of  Guarantee  on  Invitation  of  one  of 
the  Parties  to  a  Civil  War,  —  under  Collective  Authority  of  the  Body 
of  States.  Tlie  Case  of  the  Allies  in  1821  in  Spain  and  Italy;  Bel- 
gium, 1830;  L'.  S.  in  Peru,  1881;  the  constant  intervention  of  the 
Powers  in  the  affairs  of  Turkey,  and  the  not  infrequent  inter- 
meddling with  Greece. 

Foster,  Century  American  Diplomacy,  358-382;  Hall,  305-309; 
Holland,  Studies  in  International  Law,  201-269;  Holland,  Euro- 
pean Concert  in  the  Eastern  Question,  1885;  Rolin-Jacquemyns, 
Le  droit  international  et  la  question  d'Orient,  8  R.  D.  I.,  293, 
811;  Les  evenements  d'Orient,  10  iZ>.,  5;  Du  droit  d'intervention, 
8  lb.,  673  ;  9  lb.,  103;  La  question  d'Orient  en  1885,  18  lb.,  373, 
504,  591  ;  19  lb.,  37;  Streit.  La  question  cretoise,  4  R.  D.  I.  P., 


I 


SYLLABUS.  xli 

61,  446;  Hart,  163-165,  209-210;  Hart,  Foundations  of  American 
Foreign  Policj',  1901,  pp.  211-240;  Intervention  and  the  Monroe 
Doctrine,  1  Jones,  379,  2  lb.,  344-345;  Gilraan's  Life  of  Monroe, 
pp.  159-179,  277-294  (bibliograj)hy  of  the  doctrine,  classification, 
and  enumeration  of  its  various  applications)  ;  Holls,  Peace  Confer- 
ence at  The  Hague,  pp.  270-271;  Pellaway,  The  Monroe  Doctrine, 
1898. 

87.  Nationality :  The  Doctrines  of  Indelible  Allegiance  and  Expatria- 
tion. Case  of  z-Eneas  Macdonald;  Cases,  370;  Williams'  Case,  lb., 
372,  and  note  374;  Act  of  Congress,  Julj'  27,  1868,  lb.,  375;  Act 
concerning  Aliens  and  British  Subjects,  lb.,  377,  note;  French 
Practice,  lb.,  347,  note. 

2Calvo,  §§  539  et  seq.;  Cockburn,  Xationality  ;  Creasy,  357;  Hall, 
233-239;  1  Halleck,  401-403,  424-427;  Hart,  216-218,  244-245; 
Heffter,  §  59  o;  1  Jones,  391,  2  lb.,  358-359;  Jellinek,  Recht  des 
modernen  Staates,  3G6-386;  Lawrence,  190-193;  Liszt,  62,  86; 
3  Moore,  Intr.  Arb..  2449-2655;  1  Pvivier,  268-271,  303-306;  Rivier, 
L.  B.,  194-196;  Snou-,  §  29;  Taylor,  §§  172-180;  Walker,  Science, 
204-218;   ^Yharton's  Digest,  §  171;  L.  Wheaton,  891  et  seq. 

88.  Citizenship.  —  Naturalization.  Blair  v.  Silver  Peak  ]\[ines,  Cases, 
376;  Littell  v.  Erie  R.  Co.,  lb.,  378;  City  of  Minneapolis  v.  Reum, 
lb.,  390;  in  re  Moses,  lb.,  396;  Hausding's  Case,  lb.,  399,  note; 
Embden's  Case,  lb..,  399,  note;  Slaughter  House  Case,  Ih.,  400, 
note;  De  Bode  v,  Regina,  lb.,  400,  note.  On  the  question  of  citi- 
zen and.  alien,  and  the  protection  accorded  to  them  in  general, 
Cassidy  v.  U.  S.,  1883  (Second  Court  of  Commissioners  of  Alabama 
Claims,  no.  144),  5  Moore,  Int.  Arb.,  4672;  The  Paciiic  Mills  v. 
U.  S.,  1883  (Second.  Court  of  Alabama  Claims,  no.  793),  5  IMoore, 
Int.  Arb.,  4673. 

Bluutschli,    §§   364-374;    Bonfils.    §§    417-432;    Hall,    239-256; 

1  Halleck,  ch.  12;  Hart,  146-149,  225-226;  1  Jones,  85,  2  lb.,  71 
(Citizenship),  1  lb.,  391-392,  2  lb.,  359  (Naturalization);  Law- 
rence,  193-202;  Liszt,  95-101;  2  Martens,  247-287;  De  la  qualite 
de  citoyen  d'un  etat  au  point  de  vue  des  relations  Internationales, 

2  R.  D.  I.,  107;  1  Phillimore,  44.3-459;  1  Rivier,  204-213,  307- 
309;  Salmond,  Citizenship  and  Allegiance,  17  Law  Quart.  Rev., 
270-282,  18 /Z*.,  49-63;  Snow,  §  30;  Stoerk,  Les  changements  de 
nationalite  et  le  droit  des  gens,  2  R.  D.  I.  P.,  273;  Westlake,  De  la 
naturalization  et  de  I'expatriation,  on  de  changement  de  nationalite, 
1  R.  D.  I.,  102;  Woodworth,  Who  are  citizens  of  the  United 
States,  32  Am.  Law  Review,  554-.555. 


xlii  SYLLABUS. 

89.  The  Condition  of  a  Naturalized  Citizen  who  subsequently  returns 
to  his  Native  Land.     A  Prussian  Subject's  Case,  Cases,  399,  note; 
Wagner's  Case,  lb.,  400,  note;   Zeiter's  Case,  lb.,  401,  note. 
Liszt,   97;  Pomeroy,  251-258;  Snow,   §   31;   2  Wharton's   Digest, 
§§  181-182. 

90.  Nationality  of  Children  born  abroad  ;  of  Illegitimate  Children  ;  of 
Married  Women.  Hall,  §§  67-70;  1  Jones,  82  (and  ante,  §  87); 
Wharton's  Digest,  §§  185,  186. 

91.  The  Effect  of  Domicile,  and  Declaration  of  Intention  to  become  a 
Citizen,  upon  the  Nationality  of  a  Foreigner.  His  Relations  to  the 
Adopting  State,  when  abroad,  and  the  Protection  it  may  accord  him. 

City  of  Minneapolis  v.  Reum,  Cases,  390;  i?i  re  Moses,  lb.,  396; 
Koszta's  Case,  lb.,  400,  note;  Tousig's  Case,  lb.,  401. 
2  Calvo,  45;  Hall,  §  72;  1  Halleck,  109-111;  Pomeroy,  252-260; 
Taylor,  §§  202-203;  Walker,  Manual,  66-68;  Wharton's  Digest, 
§§  175,  198;  D.  Wheaton,  note,  no.  49  (especially  at  p.  146) ;  Wool- 
sey,  Appendix  III. 

92.  Persons  Destitute  of  Nationality :  "  Heimatlosen."  Bluntschli, 
§  369;  Hall,  §  74;   Liszt,  96;  1  Rivier,  304-306. 

93.  Status  of  Chinese  in  the  United  States.  Treaty  of  1880,  ;ind  Acts 
of  Congress  of  May  6,  1882,  July  5,  1884;  Geary  Act  of  1892,  Act 
of  1902.  Under  the  Fourteenth  Amendment  to  the  Constitution. 
Chinese  children,  born  in  the  United  States,  are  citizens  thereof, 
Ex  parte  Chin  King,  Cases,  379;  Fong  Yue  Ting,  lb.,  332;  United 
States  V.  Wong  Kim  Ark,  lb.,  381,  note;  Fok  Ynng  Yo  v.  U.  S., 
1901,  185  U.  S.  296. 

2  Butler,  Treaty-Making  Power,  87-123,  and  notes  (an  elaborate 
and  critical  consideration  of  the  status  of  the  Chinese  citizen  and 
alien);   Hart,  179-180;  1  Jones,  82;  2  lb.,  68. 

94.  Status  of  Indians  in  the  United  States.  Indian  tribes  designated 
by  Marshall,  C.  J.,  in  1831,  as  "Domestic  Dependent  Nations" 
(The  Cherokee  Nation  v.  Georgia,  5  Peter's  Eep.,  1).  Since  1871 
no  formal  treaties  have  been  made  with  tribes,  and  they  have 
been  subjected  to  the  authority  of  Congress.  In  1884,  the  Supreme 
Court  held  that  an  Indian  born  in  a  tribe,  though  having  left 
it,  was  not  a  citizen,  and  that  the  Fourteenth  Amendment  did  not 
apply  to  him.  Compare  provisions  of  acts  of  March  3,  1885,  and 
February  8,  1887  (allotment  of  lands  to  Indians  in  severalty). 
Elk  V.  Wilkins,  Cases,  398;  U.  S.  v.  Kagama,  lb.,  404;  and  see 
the  case  of  Crow  Dog,  109  U.  S.  556. 


SYLLABUS.  xliii 

1  Eawle's  Bouvier,  1015-1016,  328;  2  Butler's  Treaty-Making 
Power,  ch.  XIV. ;  Hart,  179-180,  196-197,  226 ;  1  Jones,  244,  2 
lb.,  229;  1  Thaj^er,  Cases  on  Constitutional  Law,  p.  598,  note;  2 
Wharton's  Digest,  ch.   VIII. 


VII.    Internatioxal  Agents  of  a  State. 

95.  Persons  designated  by  the  Constitution  of  a  State  to  manage  its 
Foreign  Affairs.  —  Department  of  Foreign  Affairs.  —  State  Depart- 
ment, in  the  United  States.  Diplomatic  Agents.  1.  Ambassa- 
dors, Legates,  iSTuncios.  2.  Envoys  and  Ministers  Plenipotentiary. 
3.  Ministers  resident.  4.  Charges  d'Affaires.  The  first  three 
classes  are  accredited  to  the  Sovereign,  the  fourth  to  the  Minister 
of  Foreign  Affairs.  Bonfils,  §§  648-651;  Poster,  Organization  of 
the  Department  of  State  CCentury  of  Am.  Dip.,  pp.  103-135); 
Hall,  310-315;  2  Jones,  144;  Liszt,  102-105;  1  Eivier,  426-428; 
Rivier,  L.  B.,  256-257;  Schuyler,  The  Department  of  State  (Am. 
Dip.,  pp.  1-40);  Snow,  §32;  Taylor,  §§276-288;  1  Twiss,  339- 
352. 

96.  Rights  of  Diplomatic  Agents.  —  P»,efusal  to  receive  a  Minister.  — 

Must  be  a  persona  grata.  —  Credentials  ;  Letters  of  Credence,  Let- 
ters Patent;  Full  Powers;  Instructions;  Passport.  Bluntschli, 
§§  159-190;  Bonfils,  §§  663-680;  3  Calvo,  §312,  et  seq.;  Hall, 
§  98;  1  Halleck,  325-329,  358-362;  Heffter,  §§  201-204,  208- 
213;  218-221;  Lawrence,  258-272;  Liszt,  109-118,  111-112;  2 
Phillimore,  156-198,  246-264;  1  Rivier,  4.53-475;  Rivier,  L.  B., 
269-274;  Taylor,  §§  289-300;  1  Twiss,  336-339,  353-365;  1 
Wharton's  Digest,  §§  82-83;  Woolsey,  126-135. 

97.  Termination  of  Mission.  —  Recall  and  Dismissal.  Dupont  v.  Pichon, 
Cases,  208,  note ;  Torlade  v.  Barrozo,  lb.,  208,  note ;  Musurus  Bey 
V.  Gadban,  lb.,  208,  note  ;  The  De  Lome  Incident,  32  Am.  Law 
Review,  265-268. 

Bluntschli,  §§  227-240;  Bonfils,  §§  730-732;  Hall,  §§  98-99  ;  1 
Halleck,  363-366;  Heffter,  §§  223-226,  227-240  (L'art  diploma- 
tique); Liszt,  112;  1  Rivier,  512-518;  Taylor,  §§320-323;  Whar- 
ton's Digest,  §  84;  D.  Wheaton,  250. 

98.  The  Rights  and  Immunities  of  Diplomatic  Agents  in  Friendly  States 
on  the  "Way  to  or  from  their  Posts.  Wilson  v.  Blanco,  Cases,  206; 
New  Chili  Gold  Mining  Co.  v.  Blanco,  lb.,  '2^1,  note;  see  also 
Holbrook  V.  Henderson,  4  Sanford  (X.  Y.),  631. 


Xliv  SYLLABUS. 

Hall,  §§  99-101;  1  Halleck,  362;  Heffter,  §  207;  Liszt,  112;  2 
Phillimore,  215-218;  Pomeroy,  421-423;  Rivier,  508-512;  Taylor, 
§§  293-294;  Twiss,  373-378. 

99.  Consuls :  Origin  of  Office.  —  Function.  —  Appointment.  —  Dismissal. 
Privileges.  —  Consuls  diplomatically  accredited.  —  "  Lettres  de 
Provision."  —  Exequatur.  In  re  Baiz,  Cases,  197;  Other  Cases, 
lb.,  205,  note. 

Bluntsclili,  §§  244-275;  Bonfils,  §§  733-775  (literature  on  subject, 
376-378);  3  Calvo,  §§  1368-1431;  Hall,  §§  105-106;  1  Halleck,  369- 
386;  Hart,  245-246;  Heffter,  §§  244-248;  1  Jones,  107,  2  7&.,93; 
Lawrence,  230-233,272-274;  Liszt,  119-125;  2  Martens,  95-121; 
2  Phillimore,  265-336;  Pomeroy,  443-451;  1  Rivier,  519-542, 
lb.,  238;  Eivier,  L.  B.,  292-303;  Snow,  58-60;  Schuyler,  Our  Con- 
sular System  (Am.  Dip.,  41-104);  Taylor,  §§  325-330;  1  Twiss, 
378-382;  Wharton's  Digest,  j§  113-124;  D.  Wheaton,  §  120. 

100.  Judicial  Functions  of  Consuls  in  Semi-civilized  Lands.  Ellis  v. 
Mitchell,  Cases,  234;  Dainese  v.  U.  S.,  15  Ct.  CI.  64,  Cases,  237, 
note;  in  re  P.oss,  lb.,  238;  U.  S.  Rev.  Stat.,  §§  4083-4086,  4087- 
4089;    Cases,  237,    note. 

Bonfils,  §§  776-791;  3  Calvo,  §§  1431  et  scq.  ;  Dunwell,  Our  Con- 
sular Courts  in  China,  34  Am.  Law  Review,  826-840;  1  Halleck, 
386-400;  1  Jones,  107,  2  lb.,  93;  Liszt,  125-133;  2  Martens, 
121-144;  2  Phillimore,  337-342;  Pomeroy,  451-453;  1  Rivier, 
543-558;  Rivier,  L.  B.,  303-308;  Snow,  62;  Taylor,  §  333; 
AVharton's  Digest,  §  125. 


VIII.    Treaties. 

101.  Nature  and  Kinds  of  Treaties.  —  Conditions  necessary  to  the  Valid- 
ity of  Treaties.  —  Authority  of  Persons  contracting.  —  Freedom  of 
Consent.  — Intimidation.  —  Fraud,  etc.  Foster  &  Elam  v.  Neilson, 
Cases,  412;  Geofroy  v.  Riggs,  lb.,  413,  and  note;  Haueiistein  v. 
Lynham,  lb.,  419,  note;  Extradition  Treaty,  see  Extradition,  §  67, 
et  seq.,  ante,  and  Terlinden  v.  Ames,  Cases,  436;  Arbitration  Treaty, 
La  Nliifa.,  Cases,  443. 

Bluntsclili,  §§  402-424,  442  ;  Bonfils,  §§  816-823,  861-929  ;  3  Calvo, 
§§  1567  et  seq.]  Hall,  §§  108-1(19;  1  Halleck,  276-295;  Heffter, 
§§  83-88;  Jellinek,  Die  rechtliche  Natur  der  Staatsvertrjige,  1880; 
Die  Lehre  von  den  Staatenverl)iii(lungen,  1882,  100-113;  Gesetz 
und  Verordnung,  1887,  341-336;   1  Jones,  352-353,  2  lb.,  500-501; 


i 


SYLLABUS.  Xlv 

Liszt,  159-169;  1  Martens,  510-561;  2  Phillimore,  68-83;  Pome- 
roy,  23  etseq.',  2  Kivier,  33-71,  lOG-118;  Pvivier,  L.  B.,  320-331, 
342-346 ;  Schuyler,  Commercial  Treaties  (Am.  Dip.,  421-457) ; 
Snow,  §33;  Taylor,  §§  334-348,374-376;  1  Twiss,  382-402;  D. 
Wheaton,  §§  252-262;  Woolsey,  159-164. 

102.  Some  Agreements  in  the  Form  of  Treaties  are  not  Subjects  of  Inter- 
national Law.     Bluntschli,  §  443;   Hall,  §  107,  and  note. 

103.  Forms.  —  Tacit  and  Express  Ratification.  —  Refusal  of  Ratification. 
—  Completion  of  Ratification.  Boufils,  §§  824-831;  Hall,  110; 
Hart,  211;  Pomeroy,  332;  2  Rivier,  71-86;  Rivier,  L.  B.,  332-336; 
Taylor,  §§  361-367;  1  Twiss,  438-442;  D.  Wheatou,  §§  256-264. 

104.  Interpretation  of  Treaties.  Convention  of  1818  between  England 
and  the  United  States  (Fisheries),  the  Clayton-Bulwer  Treaty  (1850). 
Adams  v.  Akerlund,  Cases,  426,  note  ;  Tucker  v.  Alexandroft",  lb., 
426,  note  ;  Other  Cases,  lb.,  426-427,  note. 

Adler,  Interpretation  of  Treaties,  26  Law  Alagazine  Review,  5th  ser. , 
62-91,164-171;  Bonfils,  §§  835-844;  Hall,  §§  111-112;  IHalleck, 
296-305;  Heffter,  §95;  Lawrence,  Essays,  89-162;  2  Phillimore, 
94-125;  Pomeroy,  384-395;  2  Rivier,  122-125;  Rivier,  L.  B., 
346-348;  Schuyler,  The  Fisheries  (Am.  Dip.,  404-420);  Taylor, 
§§  377-390;    D.  Wheaton,  §  287;  Woolsey,  173-174. 

105.  Conflict  between  Different  Treaties  ;  between  Different  Parts  of  the 
same  Treaty ;  between  Law  and  Treaty.  Sutton  v.  Sutton,  Cases, 
427;  People  v.  Gerke,  5  Cal.  381,  Cases,  420,  note;  Wunderle  v. 
Wunderle,  lb.,  414 ;  Whitney  v.  Robertson,  lb.,  422  ;  Botiller  v. 
Dominguez,  lb.,  426,  note;  compare  U.  S.  v.  Lee  Yen  Tai,  1901, 185 
U.  S.  213. 

Bluntschli,  §  414;  2  Calvo,  §§  720-723;  Hall,  §  112;  2  Phillimore, 
126-132;  Taylor,  §§  391-393. 

106.  Treaties  of  Guarantee.  Bluntschli,  §§  437-440;  Bonfils,  §§  870- 
912 ;  Hall,  §  113 ;  Heffter,  §  97  ;  2  Phillimore,  84-93  ;  2  Rivier, 
94-105;  Rivier,  338-341 ;   Taylor,  §§  347-353 ;    Woolsey,  166-170. 

107.  Legislation  necessary  to  carry  Treaties  into  Effect.  In  the  United 
States  a  Treaty  is  by  Constitutional  Provision  the  Law  of  the  Land. 
Is  the  House  of  Representatives  in  the  United  States  under  Obliga- 
tions to  pass  Acts  necessary  to  carry  Treaties  into  Effect  ?  The  Jay 
Treaty,  1794,  the  Alaska  Treaty,  1867.  1  Butler's  Treaty-.Making 
Power,  cli.  10,  12;  compare  also  ch.  11. 


xlvi  SYLLABUS. 

108.  A  Treaty  dates  from  Signing :  in  its  Operation  on  Individual 
Rights,  from  the  Date  of  Ratification.  Haver  v.  Yaker,  Cases,  420  ; 
Davis  V.  Police  Jury,  Ih.,  421,  note. 

109.  The  Obligation  of  Treaties.  —  Difference  between  a  Void  and  a 
Voidable  Treaty.  —  Test  of  Voidability.  Bernard,  Lectures  on 
Diplomacy  (1868),  168  ;  Bluntsclili,  §§  415,456-461;  Creasy,  40- 
44;  Hall,  364-375,  Heffter,  §  98 ;  1  Halleck,  324;  Maine,  Ancient 
Law,  23;  2  Phillimore,  76;  Pomeroy,  347;  Taylor,  §§  363,  394- 
398  ;  Wharton's  Digest,  §  137  a. 

110.  Most  Favored  Nation  Clause  in  Commercial  Treaties.  Whitney  v. 
Kobertson,  Cases,  422  ;  Herod,  Favored  Nation  Treatment,  an  Analy- 
sis of  the  Most  Favored  Nation  Clause,  1901 ;  Kasson,  Reciprocity, 
1901;  Liszt,  164-166;  Wharton's  Digest,  §  134. 

111.  Extinction  and  Renewal  of  Treaties.  Sutton  v.  Sutton,  Cases, 
427;  Society  for  Propagation  of  Gospel  v.  Wheeler,  Ih.,  428; 
Hooper  v.  U.  S.,  Ih.,  433 ;  Terlinden  v.  Ames,  Ih.,  4.36. 
Bonfils,  §§  851-860;  Hall,  §  117;  Liszt,  166-169;  Pomeroy,  356 
et  seq.;  2  Rivier,  126-146;  Pvivier,  L.  B.,  349-356;  Taylor,  §§  399- 
400. 

IX.   Amicable  Settlement  of  Disputes  axd  Attempts  to  mitigate 
THE  Harshness  and  Hardships  of  War. 

112.  Arbitration.  La  Ninfa,  Cases,  443;  Pious  Fund  Case, /&.,  449, 
note. 

Amos,  Political  and  Legal  Remedies  for  War;  Bluntschli,  §§  488- 
498  ;  Bonfils,  §§  944-970  (literature,  especially  articles  in  foreign 
periodicals)  ;  3  Calvo,  §§  1706  et  seq. ;  Rouard  de  Card,  L'Arbitrage 
international,  1876;  Creasy,  394-399;  Hall,  378-380  (literature, 
note  on  380);  1  Halleck,  102,  467-468,  485-487  ;  Hells,  The  Peace 
Conference  at  The  Hague,  1900 ;  1  Jones,  21,  2  lb.,  19-20  ;  Lapar- 
delle,  La  conference  de  la  paix,  1900  ;  Lawrence,  Evolution  of 
Peace  (Essays,  234-277);  Lawrence,  672-677;  Liszt,  148,  279- 
283 ;  Maine,  207-228 ;  3  Martens,  138-155 ;  Merignhac,  Traite 
theroique  et  pratique  de  I'arbitrage,  1895;  Moore,  International 
Arbitration,  1898  (especially  Vol.  5,  "  Treaties  Relating  to  Arbitra- 
tions to  which  the  United  States  has  been  a  Party;  "  "  Historical 
Notes,"  —  a  history  of  arbitration  to  date  of  publication);  3 
Phillimore,  1-17 ;  Revon,  L'arbitrage  international,  1892;  2  Rivier, 
166-188;  Rivier,  L.  B.,  366-372;  Snow,  §  38;  Taylor,  §§  33,  356- 
383. 


SYLLABUS.  xlvii 

113.  Mediation.  Bluntschli,  Introduction,  p.  30,  §§108-114,481-487; 
Bonfils,  §§  931-943;  3  Calvo,  §§  1C82,  e^  sexi-  ;  Heffter,  §§  lOG-108 ; 
Holls,  176-203;  Liszt,  276-279;  1  Martens,  534-538  ;  3 //>.,  132- 
138;  Rivier,  L.  B.,  363-366;  Snow,  §  34;  Taylor,  §§  359-360; 
2  Twiss,  12-16. 

114.  International  Acts  and  Movements  with  a  View  to  mitigate  the 
Rigors  of  War.  1.  The  Declaration  of  Paris,  1856,  2  Twiss,  512- 
524;  2.  The  Geneva  Convention,  1864,  2  Twiss,  524-557;  Conven- 
tion of  1868 ;  3.  The  Declaration  of  St.  Petersburg,  1868,  2  Twiss, 
557-561 ;  4.  The  Brussels  Congress,  1874,  7  R.  D.  I.,  87,  438  ;  5.  The 
Hague  Conference,  1899;  Holland,  Studies,  59-78;  Holls,  Hague 
Conference;  93,  134;  Maine,  123-142;  2  Rivier,  260-273;  Taylor, 
§§35-36. 

PART   TI. 

INTERNATIONAL   RELATIONS   AS   MODIFIED  BY  WAR. 

I.    Means  Shokt  of  War  —  Definition  of  War  —  Declaration 

OF  War, 

115.  Reprisals. — Retorsion.  —  Pacific  Blockade.  The  Nereide,  Cases, 
451;  Gray  v.  U.  S.,  lb.,  452;  Case  of  Don  Pacifico,  1850,  Ih.,  461, 
note;  Other  Cases,  lb.;  Retorsion,  Cases,  notes,  459-463;  Pacific 
Blockade,  lb.,  463  note. 

Barclay,  Les  blocus  pacifiques,  29  R.  D.  I.,  474;  Bluntschli, 
§§  499-508;  Bonfils,  §§  972-994;  3  Calvo,  §§  1809  et  seq.; 
Creasy,  400-404;  Hall,  381-390;  1  Halleck,  470-474,  2  lb.,  109; 
Heffter,    §§   110-112;   Holland,    Studies,    130-150;   1  Jones,  429, 

2  lb.,   378-427;    Lawrence,    293-295,    297-298;    Liszt,    283-286; 

3  Phillimore,  18-43;  2  Rivier,  189-199;  Rivier,  L.  B.,  372-376; 
Snow,  §§  35-37;  Taylor,  §§  435-437,  444-446;  2  Twiss,  18-38; 
Walker,  Science,  154-158;  D.  Wheaton,  §§  290-292,  and  note  no. 
151;  L.  Wheaton,  501-510,  and  note  no.  168;  Woolsey,  181-187. 

116.  Hostile  Embargo.     Boedes  Ltist,  Cases,  460  and  463  note. 

3  Calvo,  §§  1824  et  seq.;  Creasy,  435;  Hall,  §  120;  1  Halleck,  481; 
Heffter,  §  111;  Lawrence,  295-297;  3  Phillimore,  44-49;  Taylor, 
§§  431-434;  D.  Wheaton,  §  293,  and  note  no.  152;  L.  Wheaton, 
510,  and  note  no.  169;   Woolsey,  180. 

117.  Declaration  of  War.  —  War  without  a  Declaration.  —  Civil  War.  — 
Date  of  the  Beginning  of  a  War.  Dole  v.  Merchants  Mutual  Marine 
Ins.  Co.,  Cases,  470;  The  Panama,  lb.,  474,  note;  The  Prize  Cases, 


Xlviii  SYLLABUS. 

Ih.,  475;  Matthews  v.  McStea,  lb..  508;  Other  Cases  in  note,  J&., 
480-482. 

Bluntschli,  §  529;  Bonfils,  §§  1027-1065;  4  Calvo,  §§  1899  et  seq.; 
Creasy,  405-407;  Hall,  390-399;  1  Halleck,  521-526,  540-542; 
Heffter,  §  121;  1  Jones,  571,  2  Ih.,  519-520;  Lawrence,  299-301; 
Liszt,  287-297;  Maurice,  Hostilities  without  Declaration  of  War, 
1883;  Owen,  Declaration  of  War,  1889;  3  Phillimore,  85-113; 
de  Saint  Croix,  De  la  declaration  de  guerre  et  ses  effets  imme- 
diats,  1892;  Taylor,  §§  24,  455,  456;  2  Twiss,  65-66;  Wiesle, 
Le  droit  international  applique  aux  guerres  civiles,  1898 ;  Woolsey, 
187-193. 

118.  Definition  of  War.  —  Its  Object.  —  Causes  of  War.  —  Kinds  of  War. 

U.  S.  V.  The  Active,  Cases,  464;  The  Teutonia,  lb..,  471. 
Baty,  Conditional  War,  24  Law  Magazine  and  Eeview,  5th  ser., 
336-440;  Bluntschli,  §§  510-528;  Bontils,  §§  995-1026;  4  Calvo, 
1-40  (resume  of  opinions  of  writers);  Creasy,  360-392;  1  Hal- 
leck, 488-520;  Lawrence,  290-293;  Maine,  131,  132;  3  Martens, 
§§  106-109;  3  Phillimore,  77-84;  Fillet,  Les  lois  actuelles  de  la 
guerre,  1898;  2  Rivier,  200-235;  Eivier,  L.  B.,  377-389;  Snow, 
§§  39-41;  Taylor,  §§  448-454;  2  Twiss,  43-45;  D.  Wheaton, 
§  296 ;   Woolsey,  210. 

II.    Effects  of  War  as  Between  Enemies. 
(a)  Laws  and  Usages  of  War.  —  Conduct  of  Hostilities.^ 

119.  Who  are  Enemies  in  a  War  ?  One  Theory  is  that  all  Citizens  or 
Subjects  of  one  Belligerent  State  are  the  Enemies  of  all  the  Citi- 
zens or  Subjects  of  the  other.  Another  Theory  is  that  War  is  a 
Contest  between  States,  and  that  Private  Individuals  of  the  Bel- 
ligerent States  are  not  Enemies  at  all.  The  First  is  the  Old  View, 
and  is  still  supported  by  the  Better  Authority. 

Bluntschli,  §§  529-530;  Bonlils,  §§  1050-1050;  Calvo,  §§  2035- 
2036;  Creasy,  376-338;  Hall,  §  18;  1  Halleck,  526-527;  Holland, 
Studies,  41-58,  78-96;  Holls,  141;  1  Jones,  571,  2  lb.,  519-520; 
Lawrence,  314-322;  Liszt,  287-288;  Maine,  143-160;  Taylor,  §  451 ; 
Walker,  Science,  237;  Woolsey,  550. 

120.  All  Peaceful  Relations  between  Belligerent  States  and  their  Citi- 
zens cease  on  the  Outbreak  of  War.  —  Modern  Usage  permits  Alien 

1  For  the  Regulations  proposed  by  Tlie  Hague  Conference,  now  adopted  as  law  by 
the  United  States,  see  IIoUs,  pp.  139-10 1  ;  also  Butler's  Treaty-making  Power,  II., 
pp.  528-531. 


lA 


SYLLABUS.  Xlix 

Enemies  to  remain  in  the  Territory  Unmolested  unless  their  Pres- 
ence becomes  Dangerous  to  the  State.  Clarke  v.  Morey,  Cases,  541, 
note,  ami  545,  note. 

Bonfils,  §§  1045-1055;  Calvo,  §§  1912-1914;  Hall,  §§  121-123; 
1  Halleck,  527-532;  HefFter,  289,  and  note  9;  Legal  Effect  of 
a  Declaration  of  War,  32  Am.  Law  Review,  574-577  ;  Liszt,  293- 
294;  3  Phillimore,  128-130;  2  Eivier,  235-238;  Eivier,  L.  B., 
389-391;  Taylor,  §  463;  2  Twiss,  86-87;  Woolsey,  194-198. 

121.  Who  are  Non-Combatants?  Bluntschli,  §§  578,  595;  Bonfils, 
§§  1141-1154;  Hall,  412-413;  1  Halleck,  554-555,  561;  Liszt, 
300;  2  Eivier,  248-251;  D.  Wheaton,  431,  and  note  no.  168; 
Woolsey,  216-221. 

122.  Who  are  Lawful  Combatants  ?  —  Conditions.  —  Authority.  —  Organ- 
ization—Dress. Bluntschli,  §§  569-573;  Bonfils,  §§  1088-1140; 
4  Calvo,  131-140;  1  Halleck,  553-562;  Liszt,  301-302;  2  Eivier, 
251-253;  Eivier,  L.  B.,  395-396;  Taylor,  §§  471-478;  Walker, 
Science,  249 ;  Woolsey,  214-215. 

123.  Maritime  War.  —  Privateers.  —  Letters  of  Marque  and  Reprisal.  — 
Volunteer  Navy.  Cases,  notes,  459-463;  lb.,  899-901,  note. 
Bluntschli,  §§  664-673;  Bonfils,  §§  1268-1440 ;  4  Calvo,  §§2297 
et  seq. ;  Creas}',  536-549 ;  Dupuis,  Le  droit  de  la  guerre  maritime 
d'apres  les  doctrines  anglaises  contemporaine,  1899;  Hall,  §§  180- 
184;  2  Halleck,  108-123;  Heffter,  §  124;  1  Jones,  358,  446,  2  Ih., 
324,407;  Liszt,  317-318;  Maine,  93-109 ;  Phillimore,  502-514  ;  2 
Eivier,  253-259;  Snow,  §§  41-42;  Taylor,  §§  438-439,  494-507, 
545-567;  2  Twiss,  25-27,  138-189,  374-424;  Wharton,  Digest, 
§§  383-385;  D.  Wheaton,  §  358,  and  note  173;  L.  Wheaton,  626— 
649;  Woolsey,  201-208. 

124.  Prisoners  of  War.  —  Who  may  be  taken  Prisoners  ?  —  Treatment.  — 
Parole.  — Exchange. —Ransom.  Bluntschli,  §§  593-626  ;  Bonfils, 
§§  1117-1141;  4  Calvo,  189-204;  Creasy,  452-458;  Davis,  233- 
237;  Hall,  §§  131-135;  2  Halleck,  14-39,  326-333;  Holls,  145; 
1  Jones,  445,  2  lb.,  380,  520;  Lawrence,  333-337;  Liszt,  307-309; 
Maine,  160-175;  3  iMartens,  236-239;  2  Eivier,  273-279;  Eivier, 
L.  B.,  404-406;  Eomberg,  Des  bellige'rants  et  des  prisonniers  de 
guerre,  1874;  Taylor,  §§  520-528;  2  Twiss,  350-352;  D.  Wheaton, 
426-431 ;   L.  Wheaton,  586-593. 

125.  Care  of  the  Sick  and  Wounded.  —  Geneva  Convention.  —  Red-Cross 
Society. —The  Hague  Conference.    Bluntschli,  §§  586-592;   Bon- 

d 


1  SYLLABUS. 

fils,  §§  1108-1119;  Boyland,  Six  Months  under  the  Eed  Cross; 
(1873);  4  Calvo,  §§  2034  et  seq.;  Cauwes,  L'extension  des  prin- 
cipes  de  la  convention  de  Geneve  aux  guerres  roaritimes,  1899; 
Hall,  §§  130-131;  2  Halleck,  36-39;  Holland,  Studies,  59-79; 
Holls,  127;  Lawrence,  337-339;  Liszt,  309-312;  Maine,  123-143; 
3  Martens,  239-248;  Moynier,  Le  croix-rouge,  1882;  Mliller,  Ent- 
stehungsgeschichte  des  roten  Kreutzes  und  der  Genfer  Konvention, 
1897;  3  Phillimore,  157-160;  2  Rivier,  268-273;  Rivier,  L.  B., 
402-403. 

126.  Instruments  of  "War.  —  Means  of  Destruction.     Bluntschli,  §§  557- 
560;  Bonfils,  §§  1066-1077;  4  Calvo,  147-149;  Hall,  §§  182-186 
1  Halleclv,  553-566;  Heffter,  §  125;   2  Jones,  519;   Liszt,  304-305 
3  Martens,  207  et  seq. ;   3  Philliniore,  160-163;  2  Rivier,  260-268 
Rivier,   L.  B.,  399-401;  Snow,   §   44;  Taylor,  479-482;  Woolsey, 
211-213. 

127.  Devastation.  —  Is  it  ever  Lawful  ?  Bonfils,  §§  1227-1230 ;  4  Calvo, 
244-253;  Hall,  §§  186-187;  Lawrence,  410,  444;  2  Rivier,  265, 
318,  335;  Taylor,  483-486. 

128.  Bombardment  of  Towns.  —  Fortified.  —  Open.  Bluntschli,  §§  552- 
554,  bis;  Bonfils,  §§  1078-1087;  Calvo,  §§  2067-2095;  Davis, 
219-222;  Hall,  §§  186-187;  Holland,  Studies,  96-111;  Liszt, 
306;  Holls,  152;  Taylor,  §§  484-487;  Woolsey,  223-224.  The 
important  cases  will  be  found  in  Calvo. 

129.  Deceit.  —  Spies.  —  Balloons.  Bluntschli,  §§  627-636;  Bonfils, 
§§  1072-1075,  1099-1107;  4  Calvo,  2106-2126;  Davis,  241-244; 
G.  Friedmann,  Die  Lage  der  Kriegskundschafter  und  Kriegspione, 
1892;  Hall,  §§  187-188;  1  Halleck,  566-574 ;  Liszt,  303-304 ;  Holls, 
95,  and  153;  3  Martens,  249;  2  Rivier,  249;  261,  280-284;  Rivier, 
L.  B.,  407;  Taylor,  490-494. 


(i)    Ejfect  of  War  upon  Propertij,  and  Commercial  Relations  with 

the  Enemy. 

130.  When  War  breaks  out  between  two  States,  the  Movable  or  Per- 
sonal Property  of  Citizens  of  either,  found  in  the  Territory  of  the 
other,  on  Land,  is  by  the  Old  and  Strict  Rule  of  War  confiscable.  — 
Debts  due  to  Citizens  of  the  Enemy  State  shared  the  Same  Fate.  In 
modern  Practice,  however,  this  Rule  has  become  nearly  obsolete. 
Hamilton  v.  Eaton,   Cases,  481;  Ware  v.   Hylton,   lb.,   485,  note; 


SYLLABUS.  li 

Brown  V.  U.  S.,  7i.,48.6,  and  note,  494;  Ex  paHe  Boussmaker,  Ih., 
494;  Wolff  V.  Oxholni,  lb.,  496,  and  note,  497. 
Bonfils,  §§  1204-1206;  4  Calvo,  §§  1915-1925;  Hall,  §§  141-147; 
1  Halleck,  532-539;  Heffter,  §  140;  Liszt,  314;  3  Martens,  197- 
206;  3  Phillimore,  128-148;  2  Eivier,  306,  318  et  seq.;  Rivier, 
L.  B.,  422-423;  Snow,  §  45;  Taylor,  §§  539-557;  2  Twiss,  122- 
125;  D.  Wheaton,  §§  298-308,  and  notes  no.  156-157;  Woolsey, 
194-198. 

131.  Property  of  the  Enemy  found  afloat  in  Ports,  on  the  breaking  ont 
of  War  was  generally  Confiscable  as  Prize  until  a  very  Recent 
Time.  But  here,  too,  later  Practice  would  seem  to  have  discarded 
the  Harsher  Rule.  Compare  with  Embargo,  —  Case  of  Boedes  Lust, 
Cases,  460;  Brown  v.  U.  S.,  lb.,  486;  Tlie  Johanna  Emilia,  Cases, 
498,  note. 

Hall,  §§141-144;  Lawrence,  282-416;  Maine,  105,  117;  3  Philli- 
more, 132;.  Taylor,  560-561;  D.  Wheaton,  389,  note;  L.  W^heaton, 
531,  and  note  no.  173. 

132.  Debts  of  a  State  due  to  the  Enemy  and  the  Interest  thereon  are 
not  Confiscable.  Case  of  the  Silesian  Loan,  1752  (2  Martens,  Causes 
Crlebres,  97),  Cases,  461,  note. 

Bonfils,  §§1056-1059;  Calvo,  §§  1924-1925;  Hall,  §141;  1  Hal- 
leck, §533-537;  3  Phillimore,  148;  Taylor,  §  552;  D.  Wheaton, 
388-391,  and  see  note  no.  157. 

133.  Immovable  Property  —  Lands  and  Houses  —  of  the  Enemy  within 
the  Limits  of  the  Other  Belligerents  are  never  confiscated.  Calvo, 
§§  1922,  2193-2293;  Hall,  §  144;  2  Halleck,  58-79;  Liszt,  814; 
Maine,  192-206;  3  Martens,  148,   260-266;   Taylor,  §§  539-557. 

134.  Property  of  the  Enemy  found  on  the  Sea  or  in  the  Ports  of  the 
Enemy,  is  Confiscable  as  Prize  of  War.  —  Modified  by  Declaration 
of  Paris,  1856.     (Cases,  898,  note.) 

Bluntschli,  §§42-47,  and  §§  664-673;  Bonfils,  §§  1281-1361;  4 
Calvo,  §§  2379-2410;  Dupuis,  Le  droit  de  la  guerre  maritime 
d'apres  les  doctrines  anglaises  contemi)oraines,  1899;  Hall,  §§  143, 
146;  2  Halleck,  80-123;  Liszt,  323-325;  3  Martens,  291-296;  3 
Phillimore,  560;  2  Rivier,  330-313;  Rivier,  L.  B.,  426-428;  Tay- 
lor, §§  558  et  seq.  ;  D.  Wheaton,  382-383;  Woolsey,  200. 

135.  The  EflFect  of  War  upon  Contracts  between  Enemies  made  be- 
fore the  War  :  Executed  Contracts  ;  Executory  Contracts  ;  Statutes 
of  Limitation;    Interest  on   Debts.     Hoare  v.  Allen,   Cases,  498; 


lii  SYLLABUS. 

Hanger  v.  Abbott,  77;.,  500;  Matthews,  v.  McStea,  Ih.,  508;  Gris- 
wold  V.  Waddington,  lb.,  504;  X.  Y.  Life  Ins.  Co.  v.  Statbem,  Ih., 
512,  and  note,  516;  Ware  v.  Jones,  lb.,  517,  and  note,  520;  Perkins 
V.  Kogers,  lb.,  554.  See  also  Gamba  v.  Le  Mesurier,  4  East,  407. 
Bonfils,  §§1064-1065;  Calvo,  §§  1926,  2316;  Hall,  §  126;  1  Hal- 
leck,  527;  3  Martens,  201-202;  1  Kent,  68;  3  Phillimore,  179,  798, 
866;  2Rivier,  231,  235;  Snow,  §  46;  Taylor,  459-460;  D.  Wheaton, 
403;  L.  Wheaton,  556. 

136.  Effect  of  War  upon  Treaties  between  the  Belligerent  States.  Sut- 
ton V.  Sutton,  Cases,  427 ;  Society  for  the  Propagation  of  the  Gospel 
V.  New  Haven,  lb.,  428,  and  note;  Hooper,  Adm'r,  v.  U.  S.,  lb.,  433. 
Bluntschli,  §  538;  Bonfils,  §  1049;  Hall,  §§  124-126;  1  Halleck, 
294-543;  Heffter,  §  122;  Liszt,  168;  3  Phillimore,  792-811;  2 
Kivier,  137-141;  Eirier,  L.  B.,  354-355;  Taylor,  368-369,  460- 
461;  D.  Wheaton,    352,   and  note;    L.  AVheaton,  460-477. 

(c)    Trade  with  the  Enemy. 

137.  Trade  or  Intercourse  is  wholly  interdicted,  and  is  in  all  Cases 
Illegal,  unless  under  a  License  of  the  State.  The  Hoop,  Cases, 
521;  Potts  V.  Bell,  lb.,  525;  Flindt  v.  Scott,  lb.,  526,  and  note, 
499;  Williams  v.  Marshall,  lb.,  530;  De  Jarnett  v.  De  Giversville, 
lb.,  542,  and  note,  545. 

Bonfils,  §§1059-1065;  Calvo,  §§  1926-1929;  Hall.  §126;  2  Halleck, 
124-140;  Heffter,  §  123;  1  Kent,  66-69;  3  Phillimore.  116-120; 
2  Kivier,  231;  Snow,  §  47;  Taylor,  §§  463-464;  D.  Wheaton, 
§§  309-317,  and  note  no.  158;  White,  Trading  with  the  Enemy,  16 
Law  Quarterly  Review,  397-413  ;  Woolsey,  255. 

138.  License  to  trade  must,  as  a  Rule,  be  granted  by  the  Supreme 
Authority  of  the  State,  and  must  be  granted  or  assented  to  by  both 
Belligerents.  ^\\q  Sea  Lion,  Cases,  531;  Coppell  v.  Hall, //a,  534, 
note;  Hamilton  v.  Dillin,  lb.,  534,  note. 

Bonfils,  §§  1061-1065;  4  Calvo,  §  1930,  and  notes;  Hall,§§  195-196; 
2  Halleck,  344-349;  Magoon,  Military  Occupation,  210-255;  Tay- 
lor, §§  509-515;  D.  Wheaton,  502-504,  and  note  no.  198;  Woolsey, 
256. 

139.  After  the  Outbreak  of  War,  a  Citizen  may  neither  go  in  Person 
nor  send  an  Agent  to  the  Enemy's  Country  to  bring  away  his  Prop- 
erty. The  Rapid,  Cases,  557;  The  St.  Lawrence,  lb.,  559;  Amory 
V.  I\rcGregor,  Ih.,  561. 

2  Halleck,  126-127. 


I 


SYLLABUS.  lili 

140.  Citizens  residing  within  the  Enemy's  Country  should  return  Home 
on  the  Outbreak  of  the  War,  and  should  be  granted  a  Reason- 
able Time  to  withdraw  their  Property  and  return.  The  Jir'nj 
Joseph.,  Cases,  556;  The  St.  Lawrence,  lb.,  559;  Amory  v. 
McGregor,  Ih.,  561;  The  IVilliam  Bagalaij,  lb.,  565,  and  note. 

2  Halleck,  129. 

141.  Contracts  entered  into  with  Enemies  during  War  by  Citizens  re- 
siding in  the  Enemy's  Country.      Kershaw  v.  Kelsey,  Cases,  5-35. 

4  Calvo,  §§  1930  et  seq.,  and  notes;  3  Phillimore,  120-121;  D. 
Wheaton,  403. 

142.  Bills  of  Exchange  drawn  by  a  Citizen,  while  a  Prisoner  in  the 
Enemy's  Country,  upon  a  Person  in  his  own  Country,  and  sold  to 
an  Enemy  are  not  regarded  as  Trading  with  the  Enemy,  —  at  least 
they  may  be  enforced.  Antoine  v.  Morshead,  Cases,  573;  Daubuz 
V.  Morshead,  Ih.,  575,  note. 

1  Halleck,  529;  1  Kent,  67;  D.  Wheaton,  §  317. 

143.  Agents  may  represent  and  bind  their  Principals  in  the  Enemy's 
Country,  if  appointed  before  the  Outbreak  of  War ;  if  appointed 
during  the  War,  their  Contracts  are  void.  Small  v.  Lumpkin, 
Cases,  538;   U.  S.  v.  Grossmajer,  lb.,  541,  note. 

144.  Insurance  on  Ships  or  Property  of  the  Enemy.  Furtado  v.  Eodgers, 
Cases,  549 ;  Other  Cases  in  note,  553. 

2  Halleck.  140;  Pennant,  Insurance  of  Enemies'  Property,  18  Law 
Quarterly  Pveview,  289-296. 

145.  Ransom  Contracts,  Ransom  Bill,  Safe  Conduct  constitute  Excep- 
tions to  the  Rule  against  Trading  with  the  Enemy.  Cornu  v. 
Blackburn,  Cases,  566;  The  Charming  Xanaj,  lb.,  568;  The  Pa- 
trixent,  lb.,  569,  and  note;  Goodrich  &  De  Forrest  v.  Gordon,  lb., 
571.     See  also  Anthon  v.  Fisher,  lb.,  570,  note. 

Bonfils,  §§  1237-1258;  4  Calvo,  §§2422-2429;  Hall,  §§  151-152; 
2  Halleck,  330-333;  Lawrence,  446-449;  Maisonnare  v.  Keating, 
2  Gall.  337;  3  Phillimore,  177-179,  644-647;  Taylor,  §06-522; 
I).  Wheaton,  §  411,  and  note  no.  199;  Woolsey,  245-247. 

146.  Pacific  Intercourse  of  Belligerents.  —  Commercia  Belli:  Flags  of 
Trice.  — Truces.  —  Passports.  —  Armistices.  —  Cartels.  —  Capitula- 
tions.—  License  to  Trade.  —  Ransoms.  Crawford  v.  The  Willicm, 
Penn,  Cases,  575;  Crawford  &  McLean  v.  The  Williain  Penn,  lb., 


liv  SYLLABUS. 

580;  Scholefield  &  Taylor  v.  Eichelberger,  li.,  580,  note.  Other 
Cases  in  note,  584—585. 

Bluntschli,  §§  674-699;  Calvo,  §§  2411-2452;  Hall,  §§  189- 
196;  2  Halleck,  310-334;  Lawrence,  450-456;  Liszt,  303,  315-316; 
Maine,  83-191;  2  Eivier,  360-368;  Eivier,  L.  B.,  433-436;  3 
Phillimore,  179-188;  Taylor,  §§  506-522;  D.  AYheaton,  §§  399- 
408 ;  Woolsey,    225,  255-260. 


(cT)    Commercial  Domicile.  —  Xational  Characfer  of  Property. 

147.  The  National  Character  of  Property  in  Time  of  War,  depends 
upon  the  Domicile  of  the  Owner. — French  Rule.  The  Indian 
Chief,  Cases,  588;  The  Prize  Cases,  Ih.,  001,  and  604,  note;  The 
Venus,  Ih.,  591;  Le  Hardy,  lb.,  605,  note. 

Cairo,  §§  656,  679,  1933,  2  Halleck,  414,  424;  1  Jones,  168- 
169;  Liszt,  325;  2  Rivier,  342;  Snow,  §  48;  Taylor,  §§  209,  523, 
554;    L.  Wheaton,  557-571;  Woolsey,  296. 

148.  What  constitutes  Domicile. — How  determined. — Animus  ma- 
nendi.—  Time.  The  Harmony,  Cases,  585;  ^Mitchell  v.  U.  S.,  Ih., 
605. 

4  Calvo,  §§  1936-1945;  Hall,  §  168;  1  Halleck,  415-422;  1  Jones, 
168-169;  3  Phillimore,  725-734;  D.  Wheaton,  §§  318-332;  L. 
^Tieaton,  558-560. 

149.  House  of  Trade  takes  the  National  Character  of  the  Country  in 
which  it  is  Established.  —  Exception  :  House  of  Trade  in  a  Neu- 
tral State,  and  the  Partners,  or  some  of  them,  Reside  in  an  Enemy 
Country.  The  Anton ia  Johanna,  Cases,  604,  note;  The  Freund- 
schaft,  Ih.,  604,  note. 

Calvo,  §§  695,  1936;  Hall,  §  168;  D.  ^^lieaton,  §  334;  L.  Wheaton, 
557  et  seq.,  and  note  no.  180. 

150.  The  Product  of  the  Enemy's  Soil  takes  the  National  Character  of 
the  Country  where  it  is  Produced.  Bentzen  v.  Boyle,  Cases,  598. 
Bonfils.  §  1.359;  Hall,  §§  168-109;  Liszt,  325;  2  Eivier,  344-345 ; 
D.  Wheaton,  §§  336-339;  L.  Wheaton,  576-580. 


(e)    Oivnersliij?  of  Goods  in  transitu,  on  the  Ocean,  in  Time  of  War. 

151.  In  Time  of  War.  or  in  Contemplation  thereof.  Goods  shipped  on 
Contract  are  at  the  Risk  of  the  Consignee  during  Transit.  The 
French  Rule  permits  the  Shipper  to  take  the  Risk  by  Agreement. 


SYLLABUS.  Iv 

The  Salhj,  Cases,  607;  The  Packet  De  Bilboa,  75.,  609 ;  The  Anna 
Catharlna,  lb.,  C12 ;  The  San  Jose  Indiano,  lb.,  G14;  Les  Trois 
Freres,  lb.,  615,  note. 

Bonfils,  §  1355;  4  Calvo,  §§  2315-2320;  Hall,  §§  172-173;  2  Hal- 
leek,  84-88;  1  Jones,  489,  490;  2  lb.,  443;  1  Kent,  87;  3  Philli- 
more,  740-745;   Snow,  §  495;  Taylor,  §  553. 

152.  Transfer  in  Transitu.  —  Stoppage  in  Transitu.  —  According  to 
the  Rule  of  the  English  and  American  Prize  Courts,  Property,  if 
Hostile  at  the  Time  of  Shipment,  cannot  change  its  Character  dur- 
ing Transitu  by  Sale  to  a  Neutral.  The  Vruu-  Margareth<i,  Cases, 
616;  The  Jan  Frederick,  lb.,  618;  The  Ann  Green,  lb.,  620;  The 
Francis  and  Cargo,  lb.,  621,  note ;  The  Benito  Estenger,  lb.,  621, 
and  note,  628. 

Eonfils,  §§  1356-1360;  4  Calvo,  §§  2321,  2322  (dissents  from  the 
English  and  American  view)  ;  1  Duer,  "On  Insurance,"  441-444; 
Hall,  171-172;  2  Halleck,  90-92;  1  Jones,  527,  2  lb.,  472;  3  Phil- 
limore,  739-740;   Taylor,  568. 

153.  National  Character  of  Merchant  Ships,  and  their  Transfer  during 
War  from  a  Belligerent  to  a  Neutral.  Bonfils,  §§  1344-1349; 
4  Calvo,  §§  2327-2338;  Hall,  §  171;  2  Halleck,  92-95;  1  Jones, 
265,  489;  Liszt,  324;  3  Phillimore,  734-739;  Snow,  §  50;  Taylor, 
§696. 

154.  Proofs  of  the  National  Character  of  Merchant  Ships.  Bonfils, 
§§  597-606;  4  Calvo,  §§  2339-2366;  Hall,  756,  note  (3d  ed.,  753- 
758);  2  Halleck,  98-105;  Taylor,  §§  308,  309,  408,  568;  3  Whar- 
ton, Digest,  §§  409-410. 

155.  Fishing  Boats  are  generally  exempt  from  Seizure,  but  the  Exemp- 
tion does  not  extend  to  Vessels  employed  in  the  Great  Fisheries. 

The  Faquette  Hahana,  Cases,  19. 

Bonfils,  §  1350;  Calvo,  §§  2368-2373;  Hall,  §  148;  2  Halleck,  106; 
Liszt,  325  ;  Taylor,  §§  558-559;  D.  Wheaton,  431,  and  note  no.  168; 
L.  Wheaton,  596,  note  no.  187;  Woolsey,  303. 

156.  Freight  in  the  Case  of  Captured  Vessels.  The  Vroiv  Henrica, 
Cases,  629;  The  Fortnna.  lb.,  631;  The  Antonia  Johanna,  lb.,  632; 
Hooper,  Adm'r,  v.  U.  S.,  lb.,  633 ;  The  Carlos  F.  Roses,  lb.,  637  ; 
The  Siren,  lb.,  648,  note. 

1  Jones,  342,  508;  Taylor,  §§  629  n,  707,  565,  568,  578,  702,  703, 
744,  745,  746. 


Ivi  SYLLABUS. 

(/")    Recajiture.  —  Salvage.  —  Postliminium.  —  Rescue. 

157.  Recapture.  —  Salvage.  —  When  does  Title  to  recaptured  Property 
vest  in  the  Captor?  The  Santa  Cruz,  Cases,  649;  The  Carlotta, 
lb.,  650;    The  Beaver,  lb.,  653,  and  654,  note. 

Bonfils,  §§  1416-1421;  Creasy,  564;  Hall,  §  166;  2  Halleck,  500- 
527;  1  Kent,  108-109;  Liszt,  327;  3  Phillimore,  613-643;  2 
Eivier,  357;  Rivier,  L.  B.,  433;  Taj^lor,  §  576;  D.  Wheaton, 
456-475;  L.  Wheaton,  524,  638-668;  Woolsey,  247-252. 

158.  Rescue  by  Neutrals.     The  Mary  Ford,  Cases,  652,  and  note;  The 
Emily  St.  Pierre,  lb.,  655,  note;  The  Lone,  lb.,  655,  note. 
Bonfils,   1485-1487;  Taylor,    §575;  D.  Wheaton,  475,  note,  476- 
477,  and  note ;  L.  Wheaton,  668 ;  Woolsey,  359. 

(rf)    Enemy  ProjJerty  on  Land.  —  Military  Occiqmtion. 

159.  Public  Property  of  the  Enemy,  —  Lands,  Buildings,  Archives, 
Work  of  Art, — Movable  or  Personal  Property.  Mohr  and  Haas  v. 
Hatzfield,  Cases,  674,  note. 

Bluntschli,  §§  652-662;  4  Calvo,  §§  2201-2214;  Creasy,  513  et 
seq.;  Hall,  §§  136-138;  2  Halleck,  58-66;  Liszt,  314;  Magoon, 
Military  Occupation,  264-281;  Taylor,  §§  485,  539,  543,  545- 
546 ;  D.  Wheaton,  438,  note ;  Woolsey,  194-197. 

160.  Private  Property,  Real  and  Personal,  as  a  Rule,  is  not  Confiscable, 
at  least  not  by  Way  of  Booty,  though  Personal  Property  may  be 
taken  by  Way  of  Contributions  and  Requisitions.  —  Comparison  in 
respect  to  the  Different  Rule  applied  to  Enemy's  Property  at 
Sea  and  on  Land.  Kirk  v.  Lyntl,  Cases,  899,  note ;  U.  S.  v.  Win- 
chester, lb.,  899,  note;  Oakes  v.  U.  S.,  lb.,  899,  note;  see  also 
Commodore  Stewart's  Case,  lb.,  910;  Titus  v.  U.  S.,  lb.,  94,  note; 
Whitfield  V.  U.  S.,  92  U.  S.,  165. 

Barclay,  Proposed  Immunity  of  Private  Property  at  Sea  from 
Capture  by  Enemy,  16  Law  Quarterly  Review,  16-23;  Bluntschli, 
§  665;  Bonfils,  §§  1195  et  seq.;  4  Calvo,  §§  2294  et  seq.;  Creasy, 
536-556 ;  Hall,  §§  139  et  seq. ;  2  Halleck,  66-75 ;  Heffter,  §  133 ; 
1  Jones,  447;  T.  J.  Lawrence,  Essays,  No.  1;  Liszt,  312-314; 
Magoon,  264-280 ;  2  Rivier,  306,  318-324  ;  Rivier,  L.  B.,  422- 
423;  Snow,  §51;  Taylor,  547,  551  et  seq.,  462;  D.  Wheaton,  §335, 
and  note  no.  171 ;  L.  AVheaton,  884. 

101.  Requisitions  and  Contributions  in  Land  Wars.  —  Will  they  be 
resorted  to  in  Maritime  Wars?     Bluntschli,  §§  653-686;  Bonfils, 


SYLLABUS.  Ivii 

§§1207-1226;  Calvo,  §§  2231-2235;  Creasy,  530-554;  Edwards, 
"The  Germans  in  France,"  p.  59;  Hall,  §§  140-143;  2  Halleck, 
56,  69,  310;  Heffter,  301;  Lawrence,  374-376,  458;  Magoon, 
Military  Occupation,  217,  345-350;  Maine,  200;  Sherman,  '^Me- 
moirs," XL,  175,  181-184,  207,  227;  Taylor,  §§  548-550,  558; 
Twiss,  124;  Woolsey,  220. 

162.  The  Bombardment  of  Towns.  Bluntschli,  §§  554-556;  Bonfils, 
§§1081-1086;  Calvo,  §§2085,  2092;  Hall,  §  186;  Heffter,  281; 
Holland,  Studies,  96-111;  Holls,  152;  Liszt,  306;  2  Rivier,  284- 
288;  Rivier,  L.  B.,  408-409;   Taylor,  §§  484-485;  Woolsey,  224. 

163.  Military  Occupation.  —  The  General  Character  of  the  Right  and 
Jurisdiction  of  an  Invader  over  the  Territory  occupied  by  his  Armies. 

—  Old  Theories. — Modern  View.  Bluntschli,  §§  539-541;  Bon- 
fils, §§  115.5-1176;  Calvo,  §§  2166-2198;  Creasy,  502-512;  Hall, 
§§  153-155 ;  2  Halleck,  432-466 ;  Heffter,  298,  304-308  ;  Lawrence, 
350  et  seq.;  Liszt,  312;  Magoon,  Military  Occupation,  1902  (prac- 
tice of  United  States)  ;  INIaine,  177  ;  Martens,  250-266 ;  2  Rivier, 
299-318 ;  Rivier,  L.  B.,  413-419 ;  Snow,  §  52 ;  Taylor,  127  et  seq., 
584  et  seq.  ;  Woolsey,  252. 

164.  Relation  of  the  Territory  occupied  to  the  Government  of  the  In- 
vader. —  To  that  of  the  State  Invaded.  U.  S.  v.  Rice,  Cases,  655 ; 
Cross  V.  Harrison,  lb.,  658,  note;  Fleming  v.  Page,  lb.,  659;  Jecker 
V.  Montgomery,  lb.,  664;  Leitensdorfer  v.  Webb,  lb.,  665,  note; 
Other  Cases  in  note,  665-666 ;  Viliasseque's  Case,  lb.,  675,  note. 
Bonfils,  §§  1156-1162;  Creasy,  496;  Hall,  §167;  2  Halleck,  450; 
Liszt,  313, 

165.  De  Facto  and  Constructive  Occupation.  Creasy,  503 ;  Hall,  §  161 ; 
Walker,  Science,  344-346. 

166.  Rights  of  the  Occupier  over  the  Persons  of  the  Territory  Occupied. 

—  "War  Rebel."  4  Calvo,  §§  2166  et  seq.;  Creasy,  516;  Hall, 
§§155-158;  2  Halleck,  451-455;  Lawrence,  344-345;  Liszt,313. 

167.  Right  of  the  Invader  over  Incorporeal  Things,  as  Debts,  etc.  Bon- 
fils, §§  1191-1193;  4  Calvo,  §§  2286,  2288;  Hall,  §  138;  2  Halleck, 
460  ;  3  Phillimore,  832-840;  2  Rivier,  307-310;  2  Twiss,  62  et  seq. 

(Ji)    Termination  of  War.  —  Conquest.  —  Cession. 

168.  What  marks  the  Date  of  the  End  of  a  War  ?  —  Treaties  of  Peace. 

—  Proclamations  in  Civil  Wars.  Bain  v.  Speedwell,  Cases,  675; 
The  Thetis,  lb.,  675,  note;  The  Protector,  lb.,  682. 


Iviii  SYLLABUS. 

Bonfils,  §§  1692  ei  seq. ;  Calvo,  §§  3153-3154;  Hall,  §  197;  Heffert, 
§  176 ;  Liszt,  295  ;  3  Phillimore,  770  ;  2  Rivier,  443  et  seq.;  Eivier, 
L.  B.,  463,  464;  Snow,  §  54  ;  Taylor,  §  580  ;  D.  Wheaton,  §§  507, 
546 ;  Woolsey,  158. 

169.  Effect  of  Treaties  of  Peace  in  settling  General  Rights  and  Obliga- 
tions of  the  Parties.  —  Effect  upon  Acts  done  before  the  War.  — 
Upon  Acts  done  during  the  War.  —  Upon  Acts  done  subsequently 
to  the  Treaty  of  Peace.  Neiistra  Snim-a  I)e  Lns  Dolores,  Cases, 
681;  The  Mentor,  Ib.„  676;  The  John,  lb.,  677;  The  Kymjjh,  lb., 
676,  note;  The  Sici/ieherd,  lb.,  677,  note. 

Blnntschli,  §§  709-712;  Calvo,  §§  3155-3159;  Hall,  §§  197-202; 
Heffter,  §§  179-183;  2  Halleck,  306-324;  Liszt,  296-297;  3 
Phillimore,  770-784;  2  Rivier,  454,  458;  Rivier,  L.  B.,  465-468; 
Taylor,  §  581 ;  Woolsey,  263-266. 

170.  Postliminium.  —  Uti  possidetis.  —  How  do  they  apply  to  Territory? 
Bonfils  §§  3167  et  seq.;  Creasy,  564;  Hall,  §§  162-166;  1  Halleck, 
321,  2  lb.,  602  ;  Heffter,  §§  188-190;  Lawrence,  §  209;  Liszt,  296; 
3  Phillimore,  615;  2  Rivier,  459;  Rivier,  L.  B.,  468;  Snow,  §  55; 
Taylor,  574-576  ;  D.  Wheaton,  §  398;  Woolsey,  §  151. 

171.  Conquest.  —  Cession.  Elector  of  Hesse  Cassel's  Case,  Cases,  675, 
note;  Am.  Ins.  Co.  v.  Canter,  Ib.^  657;  U.  S.  v.  Moreno,  lb.,  666; 
Fourteen  Diamond  Rings  v.  U.  S.,  lb.,  667;  "Insular  Cases,"  lb., 
674,  note;  Bonfils,  §  535 ;  4  Calvo,  §§  2452-2490  ;  Hall,  §§  204-205  ; 
2  Halleck,  466-499;  Heffter,  §  133;  Liszt,  295;  Magoon,  Mili- 
tary' Occupation,  262-264 ;  A.  P.  Morse,  Status  of  Territory  ac- 
quired by  the  United  States,  39  Am.  Law  Register  (N.  S.),  332- 
339;  2  Rivier,  435-442;  Rivier,  L.  B.,  458-462;  Westlake,  The 
Nature  and  Extent  of  the  Title  by  Conquest,  17  Law  Quarterly 
Review,  392-401 ;  D.  Wheaton,  note  169;  Woolsey,  §  153. 


III.    Relations  between  BellicxErents  and  Neutrals. 

(a)    A  General  View  of  the  Itehitlons  between  Belligerents  and  Neutrals. 

172.  Historical  Sketch  of  the  Subject.  Bonfils,  §§  1494-1521,  1442; 
4  Calvo,  §§  2491-2553;  Hall,  §§  208-213;  Heffter,  §  152;  IJones, 
398,  2  lb. ,  365  ;  Kleen,  Lois  et  usages  de  la  neutralite  d'apres  le 
droit  international  conventionel  et  coutumiers  des  etats  civili.ses, 
1898,1899;  Lawrence,  472-499;  Liszt,  329-330 ;  3  Martens,  315- 


SYLLABUS.  lix 

325;  3  Phillimoro,  300-369;  2  Rivier,  369-379;  Taylor,  §§  596- 
613  ;  D.  Wheaton,  §§  412-425,  note  215 ;  L.  Wheatoii,  696  et  seq. ; 
Woolsey,  §  163. 

(h)    Neutral  Duties. 

173.  Neutrals  should  not  permit  their  Territory  to  be  used  for  Hostile 
Purposes  by  either  Belligerent.  —  Transit  of  Troops.  —  Fitting  out 
Hostile  Expeditions.  —  Capture  of  Vessels  in  Neutral  Waters.  The 
Anna,  Cases,  684;  The  Ticee  Gebroeders,  Ib.^  687,  note;  The  Eliza 
Ann,  lb.,  689,  note;  The  Anne,  lb.,  688;  The  General  Armstrong, 
lb.,  687,  note  ;  Commodore  Stewart's  Case,  lb.,  910  ;  The  Adela,  lb., 
6S9,  note  ;  Tlie  Florida,  lb.,  690  ;  see  also  The  Perle,  lb.,  088,  note, 
and  The  Grange,  lb.,  690,  note. 

Bluntschli,  §§  749-782  ;  Bonfils,  §§  1449  et  seq.;  4.  Calvo,  §§  2592- 
2642;  Creasy,  570-681;  Hall,  §§  214-223;  2  Halleck,  141  et 
seq.;  Historicus,  147-162 ;  1  Jones,  398,  2  lb.,  365;  Liszt,  331- 
332;  3  Martens,  326  et  seq.;  A.  P.  Morse,  Eights  of  Belligerents 
and  Neutrals  from  the  American  Point  of  View,  37  Am.  Law  Regis- 
ter (N.  S.),  657-687;  1  Phillimore,  223-236;  2  Rivier,  380-406; 
Rivier,  L.  B.,  440-447 ;  Snow,  §  57  ;  Taylor,  §§  617-621 ;  2  Twiss, 
440-459;  D.  Wheaton,  §§425-435;  L.  V/heaton,  713-727  ;  Woolsey, 
§§  164  et  seq. 

174.  Equipment  of  Vessels  of  War  in  Neutral  Territory.     U.  S.  v. 

Guinet,  Cases,  695  ;  U.  S.  v.  Peters,  lb.,  697 ;  The  Santisshna  Trin- 
idad, lb.,  701,  and  705  note;  U.  S.  v.  Quincy,  lb.,  706;  U.  S.  v. 
The  Meteor,  lb.,  711;  The  Alabama  Claims  and  Award,  lb.,  713. 
C.  F.  Adams,  The  Treaty  of  W^ashington  (Lee  at  Appomattox,  31 
et  seq.)  ;  Bernard,  Neutrality  of  Great  Britain,  360  et  seq.,  412  et 
seq.;  Bluntschli,  §  763;  Bonfils,  §§  1464  et  seq.;  Bullock,  Secret 
Service  of  Confederate  States  in  Europe  (1884)  ;  Calvo,  §§  2553, 
2590,  2623;  Hall,  §§  223  etseq.;  2  Halleck,  153-163;  Historicus, 
163-171 ;  Lawrence,  535-556 ;  Liszt,  332  ;  3  Phillimore,  236  et  seq.  ; 
2  Rivier,  406 ;  Rivier,  L.  B.,  447-449  ;  Snow,  §  58 ;  Taylor,  §§  614- 
617;  D.  Wheaton,  p.  535,  note  215;  L.  Wheaton,  728;  Woolsey, 
§  170. 

175.  Loans  of  Money  to  Belligerents.  Bluntschli,  §  768;  Bonfils, 
§  1471;  4  Calvo,  §  2628;  Hall,  §  216  ;  2  Halleck,  163;  Lawrence, 
520;  Liszt,  332;  3  Phillimore,  247;  Snow,  §  59,  Taylor,  §  022. 

176.  Sale  of  Munitions  of  War  by  a  Neutral  State.  Sale  of  Arms  to 
Prance,  Cases,  747,  note. 


Ix  SYLLABUS. 

Hall,  §  217;  1  Jones,   51;   Lawrence,    520;  Liszt,  333;  2  Rivier, 
408-415;   Snow,  §  59;  Taylor,  §  624. 

177.  Aid  to  Insurgents.  —  Loans.  —  Munitions  of  War.  Thompson  v. 
Powles,  Cases,  37 ;  De  Wutz  v.  Hendricks,  76.,  721;  Kennett  v. 
Chambers,  iJ.,  723;  U.  S.  v.  Trumbull,  lb.,  731;  The  Salvador, 
lb.,  743;  The   Three  Friends,  lb.,  748. 

Hall,  §  5;  Historicus,  41-51 ;  2  Jones,  51;  3  Phillimore,  247-250; 
Snow,  §  60;  D.  Wheaton,  §  23,  note  15. 


(c)    Contraband  of  War. 

178.  General  Law  of  Contraband.  Bluntschli,  465  et  seq.;  Bonfils, 
§§  15-35  et  seq. ;  5  Calvo,  §§  2708  et  seq. ;  Hall,  §§  236  et  seq.  ;  2  Hal- 
leck,  214  et  seq.;  Historicus,  121-137;  Heffter,  §§  158-159  ;  1  Jones, 
108;  Lawrence,  §  277;  Liszt,  334;  3  ISEartens,  347-355;  Payn, 
State  Interference  in  Contraband  trade  and  Blockade-Kunning,  24 
Law  Magazine  and  Review,  5th  ser.,  203-218,  329-341,  448-457 ; 
2  Rivier,  §  217;  Rivior,  L.  B.,  451;  3  Phillimore,  387  et  seq.; 
Snow,  §  61 ;  Taylor,  §§  653  et  seq.;  2  Twiss,  232-298  ;  D.  Wheaton, 
§§  476  et  seq.,  note  226;  L.  Wheaton,  §§  767  et  seq.;  Woolsey 
§  193. 

179.  Classification  of  Contraband. — Res  ancipitis  usus. — Occasional 
Contraband.  The  Peterhoff,  Cases,  760;  The  Jonge  Margaretha, 
lb.,  762;  The  Covimercen,  lb.,  765;  Other  Cases,  76.,  766,  note. 
Bluntschli,  466  ;  Bonfils,  1538-1565  :  5  Calvo,  §§  2708-2754 ;  Creasy, 
609  etseq.;  Hall,  §§  236  et  seq.;  2  Halleck,  222  et  seq.;  Heffter, 
§  160;  1  Jones,  108,  2  7i.,94;  Lawrence,  §§  278-279;  Liszt,  335; 
Maxey,  Are  Food-Stuffs  Contraband,  34  Am.  Law  Review,  205-213; 
2  Rivier,  §  217;  Snow,  136;  3  Phillimore,  403-459  ;  Taylor,  §§  655- 
663;  D.  Wheaton,  §§  477-502:  L.  Wheaton,  769  etseq.;  Woolsey, 
§§  194  et  seq. 

180.  Penalty  for  Carrying  Contraband.  —  Time  when  Penalty  attaches. 
—  Rule  of  English  and  American  Cour*^^s.  —  French  Rule.  Tlie 
Neuif'urdet,  Cases,  767;  Carrington  v.  ^Merchants  Ins.  Co.,  lb.,  769; 
The  Iniina,  lb.,  776 ;  Seton  v.  Low,  Ih.,  778  ;  Ex  parte  Chavasse, 
lb.,  779,  note  ;  see  also  The  Sarah  Christiana,  lb.,  115,  note  ;  The 
Haabet,  lb.,  776,  note. 

Bluntschli,  471 ;  Bonfils,  §  1571 ;  5  Calvo,  §§  2755  et  seq. ;  Creas}-, 
626;  Hall,  §  247;  2  Halleck,  217;  Heffter,  §  161;  1  Jones,  264; 
Lawrence,  §  280;  Liszt,  337;  2  Rivier,  §  218;  Snow,  140;  3  Philli- 


SYLLABUS.  Ixi 

more,  460;  Taylor,  §  66G ;  D.  Wheaton,  §  505,  note  230;  L. 
Whoaton,  806  et  seq.  ;  Woolsey,  §  198. 

181.  Despatches  and  Persons  as  Contraband.  The  Atalanfn,  Cases,  780; 
The  Madis  ni,  lb.,  785;  Tlie  Orozembo,  lb.,  785;  The  liajyid,  lb., 
782;  The  Treuf,  lb.,  788,  note;  The  Panama,  lb.,  788. 
Bernard,  186-225;  Bluntschli,  475;  Calvo,  §§  2796-2826;  Creasy, 
627-632;  Hall,  §§248-253;  Harris,  Tm^^  Affair, p. 239;  Historicus, 
185-198;  Liszt,  338;  Fhillimore,  459;  Snow,  §  62;  Taylor,  §  669; 
D.  Wheaton,  502-504,  note  228;  L.  Wheaton,  797  et  seq.\  Woolsey, 

§199. 

(c?)    Blockade. 

182.  The  Purpose  of  Blockade.  — Must  be  Eflfective.  —  Notification.  — 
De  facto  Blockade.  The  Neptunus,  Cases,  796;  The  Betsey,  lb., 
798;  The  Panaghia  Rhomha,  Ih.,  800,  and  note,  803;  The  Johanna 
Maria,  lb.,  803;  The  Franciska,  lb.,  804;  The  Gerasimo,  lb.,  811; 
The  Nancy,  lb.,  817;  The  Ocean,  lb.,  819;  The  Olinde  Rodrigues, 

lb.,  835. 

Bernard,  226  e^  5e^.,  283;  Bluntschli,  §§  827-839;  Bonfils,  §§  1079 
et  seq.;  5  Calvo,  §§  2827  et  seq.,  §§  2909  et  seq.;  Creasy,  §§  597 
et  seq.;  Fauchille,  Du  Blocus  Maritime,  1882;  Hall,  §§  257  et  seq. ; 
2  Halleck,  182  et  seq.;  Heffter,  §§  154  et  seq.;  Historicus,  87-118; 
1  Jones,  60,  2  lb.,  46;  Lawrence,  §§  269  et  seq.;  Liszt,  §§  320- 
321;  4  Phillimore,  473  et  seq.;  2  Rivier,  288  et  seq.;  Kivier, 
L.  B.,  409-412;  Soley,  Blockade  and  Cruisers;  Taylor,  §§  674 
et  seq.;  2  Twiss,  §§  98  et  seq.;  D.  Wheaton,  §§  509-523;  L. 
■    W^heaton,   819  et  seq. ;  Woolsey,   §§  202-204. 

183.  Penalty  for  Breach  of  Blockade.  —  When  does  the  Penalty  attach  ? 
—  French  Rule.     Tlie  Me/en,  Cases,  821 ;  The  Adula,  lb.,  826. 

5  Calvo,  §§  2897  et  seq.;  Creasy,  620;  Hall,  §  264;  3  Halleck,  208, 
et  seq.;  Lawrence,  §  275;  Liszt,  322;  3  Phillimore,  506;  Snow, 
§  63;  Taylor,  §  779;  2  Twiss,  100;  Walker,  525;  Woolsey,  §  205. 


(e)    Rule  of  the  War  of  1756. 

184.  Neutrals  may  not  Engage  in  a  Trade  during  War,  from  which 
they  were  excluded  in  Time  of  Peace.     The  Immanuel,  Cases,  845; 
The  Emanuel,  lb.,  847. 
Bluntschli,    §§  799-800;    Bonfils,   §   1534;    Creasy,    §    621;    Hall, 


Ixii  SYLLABUS. 

§  234;  2  Halleck,  301;  3  Phillimore,  370-^79;  2  Eivier,  411; 
Suow,  §  65;  2  Twiss,  §  100;  D.  Wbeaton,  508;  L.  Wheaton,  814; 
Woolsey,  §  200. 

(/")    Continuous  Voyages. 

185.  Colonial  Trade,  and  Coasting  Trade.  —  Extension  in  1793.  The 
JVlUlani,  Cases,  848. 

Bernard,  Neutrality,  310;  Bonfils.  §§  1GGG-16(37;  Hall,  694:  1 
Jones,  108;  Liszt,  322;  3  Phillimore,  383;  2  Ptivier,  432-434; 
Snow,  §  65;  Taylor,  §  683;  Twiss  in  3  Law  Mag.  and  Eev.  (4th 
ser.),  1;  Walker,  512. 

186.  Applied  to  the  Carriage  of  Contraband,  and  the  Breach  of  Block- 
ade by  the  American  Courts.  The  Stephen  Bart.  Cases,  852;  The 
Bermuda,  1865,  6  AVall.  514;  The  Springbok,  1866,  5  AY  all.  1; 
The  Peterhoff,  1866,  Cases,  760;  Hobbs  v.  Henuing,  1864  (Ber- 
nard, 316,  note);  L" Affaire  du  Doehvijk,  1896  (24  Journal  de  Droit 
Int.  Privc,  268-298). 

Bernard,  310;  Bluntschli,  §§  827-840;  5  Calvo,  §§  2762-2765, 
2861-2864;  Hall.  695;  1  Jones,  265;  Lawrence,  594-598.  678-681 ; 
Liszt,  336;  3  Phillimore,  391-403;  Taylor,  §  683;  Walker,  Sci- 
ence, 514-515,  525 ;  Westlake,  Continuous  Voyages  in  Relation  to 
Contraband  of  War,  15  Law  Quarterly  Review,  24—32  ;  AYhite, 
The  Seizure  of  The  Bundesrath,  17  Law  Quarterly  Review,  12-25. 


(;/)    Rigid  of  Search   and   Capture. 

187.  The  Right  of  Visit  and  Search  is  a  Belligerent  Right,  to  which 
Neutrals  are  subject.  Resistance  in  any  Manner  to  this  Right 
entails  Condemnation.  The  JIaria,  Cases,  858;  The  Schooner 
NoAicy,  lb.,  861 ;  The  Brig  Sea  Kymph,  lb.,  869 ;  The  Ship  Eose, 
lb.,  879. 

Bluntschli,  §§  819-826;  Bonfils,  §§  586-590;  5  Calvo,  §§  2939- 
2951;  Creasy,  §§  636-637;  Fauchille,  La  theorie  du  voyage  continu 
en  matiere  de  contrabande  de  guerre,  4  R.  G.  D.  I.,  297  et  seq. 
Hall,  §§  270-272;  2Halleck,  239  et  seq.:  Heffter,  §§  167-170;  Liszt, 
200-201;  3  Martens,  355-357;  3  Phillimore,  522-544,  550;  2 
Eivier,  423-428;  Eivier,  L.  B.,  454-4.55;  Snow,  §  66;  Taylor, 
§§  685  et  seq.;   D.  Wheaton,  524-528;  Woolsey,  §§  208-209. 

188.  Formalities  of  the  Exercise  of  the  Right  of  Search.  —  Grounds  of 
Capture.  —  False  Documents.  —  Spoliation  Papers.    5  Calvo,  §§  2952 


SYLLABUS.  Ixiii 

et  seq.  ;  Hall,  §§  273-277;  2  Halleck,  258,  271;  3  Phillimore,  536; 
2  Eivier,  348-352. 

189.  The  Right  of  Visit  and  Search  in  Time  of  Peace. — Impressment 
of  Seamen.  —  Slave  Trade.  —  Protection  of  Seals.  —  Piracy.  Le 
Louis,  Cases,  352;  The  Marianna  Flora,  lb.,  873;  Behriug  Sea 
Award  [La  Ninfa'),  Ih.,  443. 

Bluntschli,  §§  343-346  ;  Bonfils,  §§  591-593;  5  Calvo,  §§  2992-3003; 
2  Halleck,  240-246,  272;  1  Jones,  264,  569;  Liszt,  200;  3  Philli- 
more, 525-529;  Schuyler,  Am.  Dip.,  233-264;  D.  Wheaton,  §  125, 
note  85,  §§  108-109,   note  67;  Woolsey,  §§  212-221. 

190.  The  Right  to  Capture  Enemy's  Goods  in  Neutral  Vessels,  and 
Neutral  Goods  in  Enemy's  Vessels.  —  '•  Free  Ships,  Free  Goods."  — 
Declaration  of  Paris.  The  Xerelde,  Cases,  884 ;  The  Atlas,  Ih., 
895;  Darby  v.  The  Brig  Erstern,  lb.,  896;  Declaration  of  Paris, 
lb.,  898,  note. 

Bonfils,  §§  1497-1526;  4  Calvo,  §§2688-2707;  Creasy,  §§  626-636; 
Hall,  §§  254-256,  267-269;  2  Halleck,  282-287;  Heffter,  §§  163- 
164;  1  Jones,  262,  265;  Lawrence,  §§  190-192;  Liszt,  223-224; 
2  Eivier,  428-330;  Eivier,  L.  B.,  455-457;  Snow,  §§  67-68;  2 
Twiss,  519-523;  D.  Wheaton,  §§  442-446;  L.  Wheaton,  736-767. 


(Ji)  '  Prize    Courts. 

191.  The  Constitution  of  Prize  Courts  in  Different  Countries.  5  Calvo, 
§§  3035  et  seq.;  2  Halleck,  378-399;  Liszt,  326;  3  Pliillimore, 
658-668;  2  Eivier,  353  et  seq.\  Snow,  §  69;  Taylor,  §  563;  L. 
Wheaton,  §  960-976. 

192.  The  Principles  and  Practice  of  Prize  Courts.  ]\riller  v.  The 
Resolution  (1),  Cases,  899;  ^IWlev  y.  The  Resolution  (2),  lb.,  906, 
and  note,  909 ;  Commodore  Stewart's  Case,  lb.,  910. 

5  Calvo,  §§  3066  et  seq.;  2  Halleck,  412,  421-431;  1  Jones,  447; 
Liszt,  326-327 ;  3  Phillimore,  666-679;  Taylor,  §§  464-566;  D. 
Wheaton,  §  385,  note  186. 

193.  They  are  Courts  of  the  Captor's  Country.  —  Effect  of  their  De- 
cisions. The  Flad  Oyen,  Cases,  919  ;  Oddy  v.Bovill,  lb.,  924,  and 
note,  925;  Dalgleish  v.  Hodgson,  lb.,  926;  The  Betsey,  1797 
(3  Moore,  Int.  Arb.,  3180-3206) ;  Gushing,  Adm'r,  v.  U.  S.,  Cases, 
929. 

5  Calvo,  §§  3036  et  seq.;  2  Halleck  378;  Taylor,  ^  o^;  2  Twiss, 
§166;  D.  Wheaton,  §390. 


Ixiv  SYLLABUS. 

194.   Prize  Courts  of  the  Confederacy :    On  Land  and  on  board  Ships. 

Tlie  LiUa  (1862),  Cases,  62;  The  Ike  Davis  (1864,  reported  as  no. 
1086  in  Court  of  Alabama  Claims,  1883);  Practice  of  Captain 
Semmes,  Cases,  932,  note. 

Bluntschli,  §  672;  5  Calvo,  §  3030;  Hall,  §  150;  Semmes,  Service 
Afloat,  1869. 


PRINCIPAL  AUTHORITIES  CITED  IN  THE 
SYLLABUS.! 


Austin,  John,  Jurisprudence  (student's  edition),  1874. 

Bernard,  IVIontague,  Four  Lectures  on  Diplomacy,  1868. 

Bernard,    Montague,    Historical    Account   of   the    Neutrality  of  Great 

Britain  during  the   American  Civil  War,  1870. 
Bluntschli,  Das  moderne  Volkerrecht  der  civilisirten  Staaten,  3d  edition, 

1878. 

(References  are  to  the  French  translation  by  Lardy,  3d  edition,  1881.) 

Bonfils-Fauchille,  Manuel  de  droit  international  public  (Droit  des  gens), 

1894,  3d  edition,  1901. 
Butler,  Charles  H.,   The  Treaty-making  Power  of  the  United  States, 

2  vols.,  1902. 
Calvo,   Charles,  Le  droit   international   theorique  et  pratique,  6  vols., 

5th  edition,  1896. 

(Vols.  1-5  are  reprint  of  4th  edition,  1887-1888 ;  vol.  6  is  a  supplement.) 

Cauchy,  E.,  Droit  maritime  international,  2  vols.,  1862. 

Creasy,  Sir  Edward,  First  Platform  of  International  Law,  1876. 

Davis,  G.  B.,  Outlines  of  International  Law,  1887. 

Dicey,  A.  V.,  Conflict  of  Laws,  1896. 

Duer,  John,  Maritime  Insurance,  2  vols.,  1845. 

Foster,  J.  ^Y.,  Centurj^  of  American  Diplomacy,  1900. 

Hall,  W.  E.,  International  Law,  4th  edition,  1895. 

Halleck,  H.  W.,  International  Law,  2  vols.,  3d  edition,  by  Sir  Sherston 

Baker,  1893. 
Hart,  A.  B.,  Handbook  of  History,  Diplomacy,  Government,  1901. 
Heffter,  A.  W.,  Das  europaische  Volkerrecht  der  Gegenwart,  4th  French 

edition,  by  Geffcken,  1883. 
Holland,  T.  E.,  Elements  of  Jurisprudence,  9th  edition,  1900. 

1  For  abbreviations  in  the  citation  of  cases,  see  Charles  C.  Soule,  Lawyer's  Refer- 
ence Manual,  1883 ;  Charles  C.  Soule,  Abbreviations  Used  in  Law  Books,  1897 ; 
Rawle's  Bouvier's  Law  Dictionary  (article,  abbreviations),  2  vols.,  1897.  The  cases  in 
tliis  collection  are  cited  as  "  Cases." 


Ixvi        PRINCIPAL   AUTHORITIES   CITED   IN  THE   SYLLABUS. 

Holland,  T.  E,,  European  Concert  in  the  Eastern  Question,  1885. 

Holland,  T.  E.,  Studies  in  International  Law,  1898. 

Holls,  F.  W.,  The  Peace  Conference  at  The  Hague,  and  its  bearings  on 

International  Law  and  Policy,  1900. 
Holtzendorff,  F.  von.,  Handbuch  des  Volkerrechts,  4  vols.,  1885-1889. 

(Reference  is  to  the  French  translation  of  vol.  1,  1888.) 

Jellinek,  G.,  Das  Recht  des  modernen  Staates,  Vol,  1,  1900. 
Jellinek,  G.,  Die  Lehre  von  den  Staatenverbindungen,  1882. 
Jellinek,  G.,  Die  rechtliche  Natur  der  Staatsvertrage,  1880. 
Jellinek,  G.,  System  der  subjektiven  offentlichen  Eechte,  1892. 
Jeukyus,  H.,  British  Rule  and  Jurisdiction  beyond  the  Seas,  1902. 
Jones,  L.,  Index  to  Legal  Periodicals,  2  vols.,  1887-1899. 
Kent,   James,   Commentaries  on  American  Law,  4  vols.,  14th  edition, 

1896. 

(Part  I.,  Of  tlie  Law  of  Nations,  vol.  1,  pp.  1-200.) 

Lawrence,  T.  J.,  Essays  on  Some  Disputed  Questions  in  Modern  Inter- 
national Law,  2d  edition,  1885. 

Lawrence,  T.  J.,  Principles  of  International  Law,  3d  edition,  1900. 

Liszt,  F.  von,  Das  Volkerrecht  systematisch  dargestellt,  1898,  2d  edi- 
tion, 1902. 

Magoon,  W.  E.,  Law  of  Civil  Government  under  Miitary  Occupation, 
2d  edition,  1902. 

Maine,  Sir  Henry,  Ancient  Law,  5th  edition,  1873. 

Maine,  Sir  Henry,  International  Law,  1888. 

Martens,  F.  de,  Traite  de  droit  international  (Translated  from  the  Rus- 
sian by  A.  Leo),  3  vols.,  1883-1887. 

Maurice,  Col.  J.  F.,  Hostilities  without  Declaration  of  War,  1883. 

Moore,  J,  B.,  Extradition  and  Interstate  Rendition,  2  vols.,  1891. 

Moore,  J.  B.,  International  Arbitrations,  6  vols.,  1898. 

Ortolan,  L.  F.  T.,  Regies  internationales  et  diplomatic  de  la  mer,  2  vols., 
4th  edition,  1864. 

Owen,  Douglas,  Declaration  of  War,  1889. 

Perels,  F.,  Das  Internationale  offentliche  Seerecht  der  Gegenwart,  1882. 
(Cited  in  French  translation  by  Arendt,  Manuel  de  droit  maritime,  1884.) 

Phillimore,  Sir  Robt.,  Commentaries  upon  International  Law,  4  vols., 

3d  edition,  1879-1889. 
Piggott,  F.  T.,  Exterritoriality,  1892. 

Pistoye  et  Duverdy,  Traite  des  prises  maritimes,  2  vols.,  1859. 
Pomeroy,  J.  N.,  Lectures  on  International  Law,  1886. 
Rivier,  A.,  Principes  du  droit  des  gens,  2  vols.,  1896. 

(Cited  as  1  and  2  Rivier.) 


I 


PRINCIPAL   AUTHORITIES   CITED   IN   THE   SYLLABUS.       Ixvii 

Rivier,  A.,  Lehrbuch   des  Volkerrechts,  2  edition,  1899. 
(Cited  Rivier,  L.  B.) 

Schuyler,  E.,  American  Diplomacy,  188G. 

Snow,  Freeman,  International  Law,  2d  edition,  1898. 

Snow,  Freeman,  Treaties  and  Topics  in  American  Diplomacy,  1894. 

Taylor,  Hannis,  International  Public  Law,  1901. 

Twiss,    Sir  Travers,    The    Law  of  Nations,   Vol.   1,   2d   edition,  1884. 

Vol.  2,  2d  edition,  1875. 
Walker,  T.  A.,  History  of  the  Law  of  Nations,  Vol.  1,  1899. 
Walker,  T.  A.,  Manual  of  Public  International  Law,  1895. 
Walker,  T.  A.,  Science  of  International  Law,  1893. 
Westlake,  John,  Principles  of  International  Law,  1894. 
Wharton,  Francis,  International  Law  Digest,  3  vols.,  2d  edition,  1887. 
Wheaton,  Henry,  Elements  of  International  Law,  edited  by  A.  C.  Boyd, 

3d  edition,   1889;  edited  by  R.  H.  Dana,   186G;  edited  by  W.B. 

Lawrence,  2d  edition,  1863. 
Woolsey,  T.  D.,  International  Law,  Gth  edition,  1894. 


PERIODICALS. 

Journal  du  droit  international  prive,  1874  et  seq. 
(Cited  as  J.  D.  I.  P.) 

Revue  de  droit  international,  1869  et  seq. 
(Cited  as  R.  D.  I.) 

Revue  generale  de  droit  international  public,  1894  et  seq. 
(Cited  as  R.  D.  I.  P.) 

Note.  —  The  following  works  are  announced,  but  unfortunately  not  yet  published  : 
Foster,  J.  W.,  American  Diplomacy  in  the  Orient,  1903. 
Moore,  J.  B.,  International  Law  Digest  (Treaties  as  well  as  Digest),  1903. 
Moore,  J.  B.,  American  Foreign  Policy,  1903  or  1904. 


OASES 

ON 

i:t^TERIsrATIONAL   LAW. 


INTRODUCTION. 


Section  1.— Inteenational  Law  is  a  part  of  the  Muxicipal  Law 

OF  States. 


HARRIS,   J.,   IN  HEIRX  v.   BRIDAULT  AND  WIFE,   1859. 

(37  Mississippi,  209,  229.) 

It  is  only  by  virtue  of  the  municipal  law  of  each  state  or  natiou, 
or  by  the  law  of  civilized  uations,  which  is  regarded  as  a  part  of  the 
municipal  law  of  each,  that  aliens  have  any  rights  at  all;  and  neitlier 
the  municipal  law,  nor  the  law  of  nations,  has  any  extraterritorial 
operation.  As  the  municipal  law  is  limited  in  its  operation  to  the 
territory  of  the  nation  by  which  it  is  established,  and  whose  citizens 
have  agreed  to  be  governed  by  its  rules,  and  does  not  extend  to  any 
other  nation  or  people  who  have  not  thus  consented  to  its  obligations; 
so  the  law  of  nations,  having  its  origin  in  the  necessities  growing  out 
of  commercial,  social,  and  diplomatic  intercourse  of  clcilized  nations, 
and  being  founded  upon  the  express  or  implied  assent  of  such  nations, 
cannot  be  extended  to  embrace  those  nations  or  people  who  neither 
respect  nor  acknowledge  the  laws  of  God  or  man,  and  are  wholly 
incapable,  from  their  nature  and  constitution,  of  civilized  inter- 
course. "The  law  of  nations  is  a  system  of  rules,  which  reason, 
morality,  and  custom  have  established  among  clcilized  nations  as 
their  public  law."     1  Kent,   Com.  1;   1  Black.  Com.  43. 

Mr.  Wheaton,  in  his  work  on  International  Law,  after  examin- 
ing the  definition  and  sources  of  international  law,  as  discussed  by 
Grotius,  Hobbes,  Puffendorf,  Rutherforth,  Bynkershoek,  Heffter, 
Vattel,   Montesquieu,   and   others,  and  the  character  of   its   obliga- 

1 


2  INTRODUCTION. 

tions,  and  upon  what  nations  it  operates,  thus  defines  it:  "Interna- 
tional law,  as  understood  avio7ig  civilized  nations,  may  be  defined  as 
consisting  of  those  rules  of  conduct  which  reason  deduces  as  conso- 
nant to  justice,  from  the  nature  of  the  society,  existing  among  inde- 
I pendent  nations;  with  such  definitions  and  modifications  as  maybe 
established  by  general  co?isent,"  and  for  this  he  cites  Mr.  Madison. 
See  International  Law,  46. 

"There  is,  then,"  he  says  in  another  place,  "according  to  these 
writers,  no  universal,  immutable  law  of  nations,  binding  upon  the 
whole  human  race,  which  mankind,  in  all  ages  and  countries,  ancient 
and  modern,  savage  and  civilized,  Christian  and  Pagan,  have  recog- 
nized in  theory  or  in  practice,  have  professed  to  obey,  or  in  fact  have 
obeyed.  *  *  *  The  obligation  of  the  ordinary  ^'2<s  yen^ium  c?ejDe?i^.sw^;o?i 
the  persuasion  that  other  nations  will  observe  the  same  miles  in  their 
intercourse  ivith  us,  which  ice  absence  toioards  them  ;  or  if  they  fail  to 
observe  these  rules,  that  they  will  incur  the  general  hostility  of  nations. 
But  this  2Jersuasio7i  cannot  exist,  as  to  those  races  of  men  who  do  not 
recognize  one  law  of  nations."  Wheaton,  International  Law,  4^;  1 
Burlamaqui,  137-8.^ 

1  In  U.  S.  V.  The  Artice,  1814,  24  Fed.  Cases,  755,  Todlman,  J.,  says  :  "  What,  indeed, 
is  the  law  of  nations?  It  is  that  rule  of  conduct  wiiicii  regulates  the  intercourse  of 
nations  with  one  another  ;  or  in  the  words  of  the  author  last  cited,  '  Tiie  law  of  nations 
is  tiie  science  of  tlie  law  subsisting  between  nations  or  states,  and  of  the  obligations 
that  flow  from  it. '  Vatt.  Law  Nat.  49.  It  is  a  law  for  tlie  government  of  national  com- 
munities as  to  tlieir  mutual  relations,  and  not  for  the  government  of  individuals  of 
those  comnmnities  in  their  relation  towards  one  another — nor  can  it  control  tlie  con- 
duct of  nations  towards  tiieir  own  citizens,  except  in  cases  involving  the  rights  of 
other  nations." 

Van  Ness,  J.,  says  (in  Johnson  et  ah.  v.  21  Bales,  28  Cases  of  Merchandise,  etc.,  2 
Paine,  601,  604):  "In  examining  the  points  whicli  have  been  stated,  it  will  be  nec- 
essary to  advert  to  some  general  principles  of  the  law  of  nations.  In  doing  this,  it  will 
not  be  requisite  to  notice  particularly  its  divisions  into  necessary,  voluntary,  conventional  or 
positive.  The  law  of  nations,  without  defining  or  developing  its  divisions  more  minutely, 
may  be  stated  to  be  the  law  of  nature,  rendered  applicable  to  political  societies,  and  modi- 
fied, in  process  of  time,  by  tlie  tacit  or  express  consent,  by  the  long  established  usages 
and  written  compacts  of  nations:  usages  and  compacts  become  so  general  that  every 
civilized  people  ought  to  recognize  and  adopt  their  principles." 

In  considering  the  application  of  this  law  of  nations  to  non-christian  communities 
(the  Mahometan  states  of  Afrioa),  Lord  Stowell,  then  Sir  William  Scott,  says:  "  It  is 
by  tlie  law  of  treaty  only  that  these  nations  hold  themselves  bound,  conceiving  (as 
some  other  people  have  foolishly  imagined)  that  there  is  no  other  law  of  nations  but 
tliat  which  is  derived  from  positive  compact  and  conventions  {The  Helena,  1801, 
4  C.  Rob.,  4,  7).  In  another  case,  the  same  eminent  authorit}'  says:  "  Independent  of 
such  engagements  [treaties],  it  is  well  known  that  this  court  is  in  the  habit  of  show- 
ing something  of  a  peculiar  indulgence  to  persons  of  tiiat  part  of  the  world  [Ottoman 
Porte].  The  inhabitants  of  those  countries  are  not  professors  of  exactly  the  same 
law  of  nations  with  ourselves.     In  consideration  of  the  peculiarities  of  their  situation 


INTRODUCTION.  3 

STORY,    J.,   IN   "LA   JEUNE   EUGENIE,"   1822. 

(2  ^f(tson,  409.) 

No"W  the  law  of  nations  may  be  deduced,  first,  from  the  general  prin- 
ciples of  right  and  justice,  applied  to  the  concerns  of  individuals,  and 
thence  to  the  relations  and  duties  of  nations  ;  or,  secondly,  in  things 
indifferent  or  questionable,  from  the  customary  observances  and  rec- 
ognitions of  civilized  nations;  or,  lastly,  from  the  conventional  or 
positive  law,  tliat  regulates  the  intercourse  between  states.  What, 
therefore,  the  law  of  nations  is,  does  not  rest  upon  mere  theor}^, 
but  may  be  considered  as  modified  by  practice,  or  ascertained  by  the 
treaties  of  nations  at  different  periods.  It  does  not  follow,  therefore, 
that  because  a  principle  cannot  be  found  settled  by  the  consent 
or  practice  of  nations  at  one  time,  it  is  to  be  concluded,  that  at  no 
subsequent  period  the  principle  can  be  considered  as  incorporated 
into  the  public  code  of  nations.  Kor  is  it  to  be  admitted,  that  no 
principle  belongs  to  the  law  of  nations,  which  is  not  universally 
recognized,  as  such,  by  all  civilized  communities,  or  even  by  those 
constituting,  what  may  be  called,  the  Christian  states  of  Europe. 
Some  doctrines,  which  we,  as  well  as  Great  Britain,  admit  to  belong 
to  the  law  of  nations  are  of  but  recent  origin  and  application,  and 
have  not,  as  yet,  received  any  public  or  general  sanction  in  other 
nations;  and  yet  they  are  founded  in  such  a  just  view  of  the  duties  and 
rights  of  nations,  belligerent  and  neutral,  that  we  have  not  hesitated 
to  enforce  them  by  the  penalty  of  confiscation.     There  are  other  doc- 

and  character,  the  court  has  repeatedly  expressed  a  disposition  not  to  hold  them 
bound  to  tlie  utmost  rigor  of  that  system  of  public  laws  on  whicli  European  states 
have  so  long  acted  in  their  intercourse  with  one  another"  {T/ie  Madonna  del  Burso, 
1802.  4  C.  Rob.  169,  172.  (To  tlie  same  effect,  he  says  in  another  case:  "It  has  been 
argued  that  it  would  be  extremely  hard  on  persons  residing  in  the  kingdom  of  Mo- 
rocco, if  they  should  be  held  bound  by  all  the  rules  of  the  law  of  nations,  as  it  is 
practised  amongst  European  states.  On  many  accounts  undoubtedly  the}'  are  not  to 
be  strictly  considered  on  the  same  footing  as  European  merchants  ;  tiiey  may,  on  some 
points  of  tlie  law  of  nations,  be  entitled  to  a  very  relaxed  application  of  the  principles, 
established  by  long  usage,  between  the  states  of  Europe  holding  an  intimate  and 
constant  intercourse  with  each  other.  It  is  a  law  made  up  of  a  good  deal  of  complex 
reasoning,  though  derived  from  ver\'  simple  rules,  and  altogether  composing  a  pretty 
artificial  system,  which  is  not  familiar  either  to  their  knowledge  or  their  observations. 
Upon  such  considerations,  the  court  has,  on  some  occasions,  laid  it  down  that  the 
European  law  of  nations  is  not  to  be  applied  in  its  full  rigor  to  the  transactions  of 
persons  of  the  description  of  the  present  claimants,  and  residing  in  that  part  of  tiie 
world  (2d  Adm.  Rep.  p.  88).  But  on  a  point  like  this,  the  breach  of  a  blockade,  one 
of  the  most  universal  and  simple  operations  of  war  in  all  ages  and  countries,  except- 
ing such  as  were  merely  savage,  no  such  indulgence  can  be  shown  (7'/ie  Ilurtige  Hane. 
1801,  3  C.  Rob.  324,  325,  326).  — Ed. 


I 


4  INTRODUCTION. 

trines,  again,  which  have  met  the  decided  hostility  of  some  of  the 
European  states,  enlightened  as  well  as  powerful,  such  as  the  right 
of  search,  and  the  rule,  that  free  ships  do  not  make  free  goods,  which, 
nevertheless,  both  Great  Britain  and  the  United  States  maintain,  and 
in  my  judgment  with  unanswerable  arguments,  as  settled  rules  in  the 
Law  of  Prize,  and  scruple  not  to  apply  them  to  the  ships  of  all  other 
nations.^  And  yet,  if  the  general  custom  of  nations  in  modern  times, 
or  even  in  the  present  age,  recognized  an  opposite  doctrine,  it  could 
not,  perhaps,  be  affirmed,  that  that  practice  did  not  constitute  a  part, 
or,  at  least,  a  modification  of  the  law  of  nations. 

But  I  think  it  may  be  unequivocally  affirmed,  that  every  doctrine, 
that  may  be  fairly  deduced  by  correct  reasoning  from  the  rights  and 
duties  of  nations,  and  the  nature  of  moral  obligation,  may  theoreti- 
cally be  said  to  exist  in  the  law  of  nations;  and  unless  it  be  relaxed 
or  waived  by  the  consent  of  nations,  which  may  be  evidenced  by  their 
general  practice  and  customs,  it  may  be  enforced  by  a  court  of  justice, 
whenever  it  arises  in  judgment.  And  I  may  go  farther  and  say,  that 
no  practice  whatsoever  can  obliterate  the  fundamental  distinction 
between  right  and  wrong,  and  that  every  nation  is  at  liberty  to  apply 
to  another  the  correct  principle,  whenever  both  nations  by  their  pub- 
lic acts  recede  from  such  practice,  and  admit  the  injustice  or  cruelty 
of  it. 


AN  ACT  FOR  PRESERVING  THE  PRIVILEGES  OF  AMBAS- 
SADORS, AND  OTHER  PUBLIC  MINISTERS  OF  FOR- 
EIGN  PRINCES   AND   STATES.     1708. 

(1  Chittifs  Statutes,  3d  ed.,  47.) 

Whereas  several  turbulent  and  disorderly  persons  having  in  a  most 
outrageous  manner  insulted  the  person  of  his  excellency  Andrew 
Artemonowitz  Mattneof,  ambassador  extraordinary  of  his  czarish 
majesty,  emperor  of  Great  Russia,  her  majesty's  good  friend  and 
ally,  by  arresting  him,  and  taking  him,  by  violence,  out  of  his  coach 
in  the  public  street,  and  detaining  liim  in  custody  for  several  hours, 
in  contempt  to  the  protection  granted  by  her  majesty,  contrary  to  the 
law  of  nations  and  in  prejudice  of  the  rights  and  privileges  which 
ambassadors  and  other  public  ministers,  authorized  and  received  as 

1  See  tlie  Declaration  of  Paris,  ISoO,  infra.  The  United  States  observed  the  prin- 
ciples of  the  Declaration  in  the  Civil  War,  18G1-1865,  and  the  rules  of  the  Declaration 
were  officially  adopted  and  proclaimed  by  the  President.  April  26,  1898,  at  the  out- 
break of  the  Spanish-American  War  (10  Richardson's  Messages  &  Papers,  204).  See 
also  Dana's  Wheaton,  note,  223;  Hall's  Int.  Law,  708-717.  —  Ed. 


INTRODUCTION.  5 

such,  have  at  all  times  been  thereby  possessed  of,  and  ought  to  be 
kept  sacred  and  inviolable;  Be  it  therefore  declared,  that  all  actions 
and  suits,  writs  and  processes,  commenced,  sued,  or  prosecuted,  against 
the  said  ambassador  by  any  person  or  persons  whatsoever,  and  all  bail 
bonds  given  by  the  said  ambassador,  or  any  other  person  or  persons  on 
his  behalf,  and  all  recognizances  of  bail  given  or  acknowledged  in  any 
such  action  or  suit,  and  all  proceedings  upon  or  by  pretext  or  color  of 
such  action  or  suit,  writ  or  process,  and  all  judgments  had  thereupon, 
are  utterly  null  and  void,  and  shall  be  deemed  and  judged  to  be  utterly 
null  and  void,  to  all  intents,  constructions,  and  purposes  whatsoever. 

2.  That  all  entries,  proceedings,  and  records,  against  the  said  am- 
bassador or  his  bail,  shall  be  vacated  and  cancelled. 

3.  And  to  prevent  the  like  insolences  for  the  future,  be  it  further 
declared,  that  all  writs  and  processes  that  shall  at  any  time  hereafter 
be  sued  forth  or  prosecuted  whereby  the  person  of  any  ambassador 
or  other  public  minister  of  any  foreign  prince  or  state  authorized 
and  received  as  such  by  her  majesty,  her  heirs  or  successors,  or  the 
domestic  or  domestic  servant  of  any  such  ambassador  or  other  public 
minister,  may  be  arrested  and  imprisoned,  or  his  or  their  goods  or 
chattels  may  be  distrained,  seized,  or  attached,  shall  be  deemed  and 
adjudged  to  be  utterly  null  and  vrid,  to  all  intents,  constructions,  and 
purposes  whatsoever. 

4.  That  in  case  any  person  or  persons  shall  presume  to  sue  forth 
or  prosecute,  any  such  writ  or  process,  such  person  and  persons,  and 
all  attorneys  and  solicitors  prosecuting  and  soliciting  in  such  case, 
and  all  officers  executing  any  such  writ  or  process,  being  thereof  con- 
victed by  the  confession  of  the  party,  or  by  the  oath  of  one  or  more 
credible  witness  or  witnesses,  before  the  lord  chancellor  or  keeper 
of  the  great  seal  of  Great  Britain,  the  chief  justice  of  the  court  of 
queen's  bench,  the  chief  justice  of  the  court  of  common  pleas,  for  the 
time  being,  or  any  two  of  them,  shall  be  deemed  violators  of  the  laws 
of  nations,  and  disturbers  of  the  public  repose,  and  shall  suffer  such 
pains,  penalties,  and  corporal  punishment,  as  the  said  lord  chancellor, 
lord  keeper,  and  the  said  chief  justices,  or  any  two  of  them,  shall 
judge  fit  to  be  imposed  and  inflicted. 

5.  Provided,  that  no  merchant  or  other  trader,  whatsoever,  within 
the  description  of  any  of  the  statutes  against  bankrupts  who  hatli  or 
shall  put  himself  into  the  service  of  any  such  ambassador  or  public 
minister,  shall  have  or  take  any  manner  of  benefit  by  this  act,  and 
that  no  person  shall  be  proceeded  against  as  having  arrested  the  ser- 
vant of  an  ambassador  or  public  minister  by  virtue  of  this  act,  unless 
the  name  of  such  servant  be  first  registered  in  the  office  of  one  of  the 
principal  secretaries  of  state,  and  by  such  secretary  transmitted  by 


6  INTRODUCTION. 

the  sheriffs  of  London  and  Middlesex  for  the  time  being,  or  their 
under  sheriffs  or  deputies,  who  shall,  upon  the  receipt  thereof,  hang 
up  the  same  in  some  public  place  in  their  ofl&ces,  whereto  all  persons 
may  resort,  and  take  copies  thereof  without  fee  or  reward. 

6.  That  this  act  shall  be  taken  and  allowed  in  all  courts  within 
this  kingdom  as  a  public  act,  and  that  all  judges  and  justices  shall 
take  notice  of  it  without  special  pleading,  and  all  sheriffs,  bailiffs, 
and  other  officers  and  ministers  of  justice  concerned  in  the  execution 
of  process  are  hereby  required  to  have  regard  to  this  act,  as  they 
will  answer  the  contrary  at  their  peril. ^ 


TRIQUET  AXD  OTHERS  v.  BATH. 

PEACH  AND  ANOTHER  y.  BATH. 

Court  of  King's  Bench,  1764. 
(3  BuiTow,  1478.) 

Mr.  Blackstone,  Mr.  Thurlow,  and  Mr.  Dunning,  on  behalf  of  the 
plaintiffs,  showed  cause  why  the  bill  of  Middlesex  in  each  of  these 
causes  should  not  be  set  aside,  and  the  bail-bond  be  cancelled. 

■  The  rule  was  made  upon  affidavits  "  Of  the  defendant's  being  a 
domestic  servant  of  a  foreign  minister;  and  having  taken  all  the 
proper  steps  to  entitle  him  to  the  privilege  of  such  domestics." 

The  only  question  was,  "Whether  the  defendant  (Christopher  Bath) 
was  really  and  truly  and  bona  fide  a  domestic  servant  of  Count  Has- 
lang,  the  Bavarian  minister;  "  or,  "  Whether  his  service  was  only  color- 
able, and  a  mere  sham  and  pretence  calculated  to  protect  him  from 
the  just  demands  of  his  creditors." 

Lord  Mansfield:  —  This  privilege  of  foreign  ministers  and  their 
domestic  servants  depends  upon  the  law  of  nations.  The  act  of  Par- 
liament of  7  Ann.  c.  12,  is  declaratory  of  it.  AH  that  is  new  in  this 
act,  is  the  clause  which  gives  a  summary  jurisdiction  for  the  punish- 
ment of  the  infractors  of  this  law. 

The  act  of  Parliament  was  made  upon  occasion  of  the  Czar's  ambas- 
sador being  arrested.     H  proper  application  had  been   immediately 

1  "  Sections  4062,  40Co,  4004,  and  4065  were  originally  sections  25,  26,  27,  and  28 
of  tlie  Crimes  Act  of  April  30, 1790,  c.  9,  1  Stat.  118;  and  these  were  drawn  from  the 
statute  of  Anne,  c.  12,  which  was  declaratory  simply  of  the  law  of  nations,  which  Lord 
Mansfield  observed,  in  Heathjield  v.  Chilton,  4  Burrow,  2015,  201(5,  tiie  Act  did  not 
intend  to  alter,  and  could  not  alter."  Per  Fuller,  C.  J.,  in  Re  Baiz,  1889,  135  U.  S. 
403,  420.- Ed. 

~t9 


INTRODUCTION.  7 

made  for  his  discharge  from  the  arrest,  the  matter  might  and  doubtless 
would  have  been  set  right.  Instead  of  that,  bail  was  put  in,  before 
any  complaint  was  made.  An  information  was  filed  by  the  then 
attorney-general  against  the  persons  who  were  thus  concerned,  as 
infractors  of  the  law  of  nations,  and  they  were  found  guilty,  but  never 
brought  up  to  judgment. 

The  Czar  took  the  matter  up,  highly.  No  punishment  would  have 
been  thought  by  him  an  adequate  reparation.  Such  a  sentence  as  the 
court  could  have  given,  he  might  have  thought  a  fresh  insult. 

Another  expedient  was  fallen  upon  and  agreed  to;  this  act  of  Par- 
liament passed,  as  an  apology  and  humiliation  from  the  whole  nation. 
It  was  sent  to  the  Czar,  finely  illuminated,  by  an  ambassador  extra- 
ordinary, who  made  excuses  in  a  solemn  oration. 

A  great  deal  relative  to  this  transaction  and  negotiation  appears  in 
the  annals  of  that  time ;  and  from  a  correspondence  of  the  Secretary 
of  State  there  printed. 

But  the  act  was  not  occasioned  by  any  doubt  "Whether  the  law  of 
nations,  particularly  the  part  relative  to  public  ministers,  was  not 
part  of  the  law  of  England,  and  the  infraction,  criminal;  nor  in- 
tended to  vary  an  iota  from  it. 

I  remember  iu  a  case  before  Lord  Talbot,  of  Buvot  v.  Barhuf,  upon 
a  motion  to  discharge  the  defendant  (who  was  in  execution  for  not 
performing  a  decree),  "  Because  he  was  agent  of  commerce,  commis- 
sioned by  the  King  of  Prussia,  and  received  here  as  such;  "  the  matter 
was  very  elaborately  argued  at  the  bar;  and  a  solemn  deliberate  opin- 
ion given  by  the  court.  These  questions  arose  and  were  discussed. 
—  "Whether  a  minister  could,  by  any  act  or  acts,  waive  his  privi- 
lege."—  "  Whether  being  a  trader  was  any  objection  against  allowing 
privilege  to  a  minister,  personally."  —  "Whether  an  agent  of  com- 
merce, or  even  a  consul,  was  entitled  to  the  privileges  of  a  public 
minister." — "What  was  the  rule  of  decision:  the  act  of  Parliament 
or  the  law  of  nations."  Lord  Talbot  declared  a  clear  opinion  — 
"That  the  law  of  nations,  in  its  full  extent,  was  part  of  the  law  of 
England."  —  "That  the  act  of  Parliament  was  declarator}',  and  oc- 
casioned by  a  particular  incident."  —  "That  the  law  of  nations  was  to 
be  collected  from  the  practice  of  different  nations,  and  the  authority 
of  writers."  Accordingly,  he  argued  and  determined  from  such  in- 
stances, and  the  authority  of  Grotius,  Barbeyrac,  Binkershoek,  Wique- 
fort,  &c. ;  there  being  no  English  writer  of  eminence  upon  the 
subject. 

I  was  counsel  in  this  case,  and  have  a  full  note  of  it. 

I  remember,  too.  Lord  Hardwicke's  declaring  his  opinion  to  the 
same  effect;  and  denying  that  Lord  Chief  Justice  Holt  ever  had  any 


8  INTRODUCTION. 

doubt  as  to  the  law  of  nations  being  part  of  the  law  of  England,  upon 
the  occasion  of  the  arrest  of  the  Russian  ambassador. 

Mr.  Blackstone's  principles  are  right;  but  as  to  the  facts  in  the 
present  case,  the  affidavits  on  the  part  of  the  defendant  have  outsworn 
those  on  the  part  of  the  plaintiffs.  (And  his  Lordship,  as  well  as  Mr. 
Justice  Wilmot,  took  notice  that  the  person  who  drew  the  affidavits 
on  the  part  of  the  defendant  had  very  exactly  pursued  the  course  of 
the  cases  that  had  been  determined  upon  questions  of  this  kind;  and 
had  taken  care  to  meet  and  answer  all  objections  that  might  arise 
from  them.)  Lord  Mansfield  observed  also,  that  the  defendant  was 
employed  in  the  service  of  Monsieur  Hastang,  before  the  plaintiff 
took  out  his  writ. 

It  was  not  to  be  expected,  he  said,  that  every  particular  act  of  the 
service  should  be  particularly  specified;  it  is  enough  if  an  actual  bond 
fide  service  be  proved.  And  if  such  a  service  be  sufficiently  proved 
by  affidavit,  we  must  not,  upon  bare  suspicion  only,  suppose  it  to 
have  been  merely  colorable  and  collusive. 

As  to  the  latter  point,  "Of  his  being  a  trader"  —  his  having  been 
so  in  Ireland  (and  even  that  seven  years  ago,  too),  will  not  bring  him 
within  the  exception  of  the  5th  clause  of  this  act,  which  provides 
"That  no  merchant  or  other  trader  whatsoever,  within  the  descrip- 
tion of  any  of  the  statutes  against  bankrupts,  who  hath  or  shall  put 
himself  into  the  service  of  any  such  ambassador  or  public  minister, 
shall  have  or  take  any  manner  of  benefit  by  that  act." 

And  there  is  no  color  for  bringing  this  case  within  that  of  Dods- 
xvorth  V.  Anderson;  for  here  is  no  connection  between  the  goods 
bought  in  England  and  those  sold  in  Ireland.  It  does  not  appear 
that  they  were  the  same  goods;  neither  is  anytime  specified,  when 
they  were  bought,  or  when  they  were  sold. 

Per  Cur.  —  Both  rules  were  made  absolute,  but  without  costs,  by 
reason  of  the  suspicious  circumstances  of  this  case. 


BLACKSTONE'S  COMMENTARIES,  BOOK  IV. 
CHAPTER   IV.,  1765. 

The  law  of  nations  is  a  system  of  rules,  deducible  by  natural  reason 
and  established  by  universal  consent  among  the  civilized  inhabitants 
of  the  world ;  in  order  to  decide  all  disputes,  to  regulate  all  ceremonies 
and  civilities  and  to  insure  the  observance  of  justice  and  good  faith, 
in  that  intercourse  which  must  frequently  occur  between  two  or  more 
independent  states  and  the  individuals  belonging  to  each. 


INTRODUCTION.  9 

This  general  law  is  fouuded  upon  this  principle,  that  different  nations 
ought  ill  time  of  peace  to  do  one  another  all  the  good  they  can,  and  in 
time  of  war  as  little  harm  as  possible,  without  prejudice  to  their  own 
real  interests.  And,  as  none  of  these  states  will  allow  a  superiority  in 
the  other,  therefore  neither  can  dictate  or  prescribe  the  rules  of  this 
law  to  the  rest ;  bat  such  rules  must  necessarily  result  from  those  prin- 
ciples  of  natural  justice  in  which  all  the  learned  of  every  nation  agree  ; 
or  the}'  depend  upon  mutual  compacts  or  treaties  between  the  respective 
communities  ;  in  the  construction  of  which  there  is  also  no  judge  to 
resort  to  but  the  law  of  nature  and  reason,  being  the  only  one  in  which 
all  the  contracting  parties  are  equally  conversant,  and  to  which  they 
are  equally  subject.  --* 

In  arbitrary  states  this  law,  wherever  it  contradicts  or  is  not  pro- 
vided for  by  the  municipal  law  of  the  country,  is  enforced  by  the  royal 
power  ;  but  since  in  England  no  royal  power  can  introduce  a  new  law 
or  suspend  the  execution  of  the  old,  therefore  the  law  of  nations 
(wherever  any  question  arises  which  is  properly  the  object  of  its  juris- 
diction) is  here  adopted  in  its  full  extent  by  the  common  law,  and  is 
held  to  be  a  part  of  the  law  of  the  land.  And  those  acts  of  parliament 
which  have  from  time  to  time  been  made  to  enforce  this  universal  law, 
or  to  facilitate  the  execution  of  its  decisions,  are  not  to  be  considered 
as  introductive  of  any  new  rule,  but  merely  as  declaratory  of  the  old 
fundamental  constitutions  of  the  kingdom  ;  without  which  it  must 
cease  to  be  a  part  of  the  civilized  world.  Thus  in  mercantile  questions, 
such  as  bills  of  exchange  and  the  like;  in  all  marine  causes,  relating 
to  freight,  average,  demurrage,  insurances,  bottomry,  and  others  of  a 
similar  nature ;  the  law  merchant,  which  is  a  branch  of  the  law  of 
nations,  is  regularly  and  constantly  adhered  to.  So  too  in  all  disputes 
relating  to  prizes,  to  shipwrecks,  to  hostages,  and  ransom  bills,  there 
is  no  other  rule  of  decision  but  this  great  universal  law,  collected  from 
history  and  usage,  and  such  writers  of  all  nations  and  languages  as  are 
generally  approved  and  allowed  of. 

But,  though  in  civil  transactions  and  questions  of  property  between 
the  subjects  of  different  states,  the  law  of  nations  has  much  scope  and 
extent,  as  adopted  by  the  law  of  England  ;  yet  the  present  branch  of 
our  inquiries  will  fall  within  a  narrow  compass,  as  offences  against  the 
law  of  nations  can  rarely  be  the  object  of  the  criminal  law  of  any  par- 
ticular state.  For  offences  against  this  law  are  principally  incident  to 
whole  states  or  nations  ;  in  which  case  recourse  can  only  be  had  to 
war ;  which  is  an  appeal  to  the  God  of  hosts,  to  punish  such  infrac- 
tions of  public  faith  as  are  committed  by  one  independent  people 
against  another  :  neither  state  having  any  superior  jurisdiction  to 
resort  to  upon  earth  for  justice.     But  where  the   individuals  of  any 


lO  INTRODUCTION. 

state  violate  this  general  law,  it  is  then  the  interest  as  well  as  duty  of 
the  government,  under  which  they  live,  to  animadvert  upon  them  with 
a  becoming  severity,  that  the  peace  of  the  world  may  be  maintained. 

For  in  vain  would  nations  in  their  collective  capacity  observe  these 
universal  rules,  if  private  subjects  were  at  liberty  to  break  them  at 
their  own  discretion  and  involve  the  two  states  in  a  war.  It  is  there- 
fore incumbent  upon  the  nation  injured,  first  to  demand  satisfaction 
and  justice  to  be  done  on  the  offender,  by  the  state  to  which  he  belongs; 
and,  if  that  be  refused  or  neglected,  the  sovereign  then  avows  himself 
an  accomplice  or  abettor  of  his  subject's  crime,  and  draws  upon  his 
communitv  the  calamities  of  foreign  war. 


ARTICLES  OF  COXFEDERATIOX,  1777  (1781-1788) 
ARTICLE  IX. 

The  United  States  in  Congress  assembled  shall  have  the  sole  and 
exclusive  right  and  power  of  determining  on  peace  and  war,  except  in 
the  cases  mentioned  in  the  sixth  Article  ;  of  sending  and  receiving 
ambassadors  ;  entering  into  treaties  and  alliances,  provided  that  no 
treaty  of  commerce  shall  be  made  whereby  the  legislative  power  of  the 
respective  states  shall  be  restrained  from  imposing  such  imposts  and 
duties  on  foreigners  as  their  own  people  are  subjected  to,  or  from 
prohibiting  the  exportation  or  importation  of  any  species  of  goods  or 
commodities  whatsoever;  of  establishing  rules  for  deciding  in  all  cases 
what  captures  on  land  or  water  shall  be  legal,  and  in  what  manner 
prizes  taken  by  land  or  naval  forces  in  the  service  of  the  United  States 
shall  be  divided  or  appropriated  ;  of  granting  letters  of  marque  and 
reprisal  in  times  of  peace  ;  appointing  courts  for  the  trial  of  piracies 
and  felonies  committed  on  the  high  seas  ;  and  establishing  courts  for 
receiving  and  determining  finally  appeals  in  all  cases  of  captures ; 
provided  that  no  member  of  Congress  shall  be  appointed  as  judge  of 
any  of  the  said  courts. 

The  United  States  in  Congress  assembled  shall  also  be  the  last 
resort  on  appeal  in  all  disputes  and  diiferences  now  subsisting,  or  that 
hereafter  may  arise  between  two  or  more  states  concerning  boundary, 
jurisdiction,  or  any  other  cause  whatever.^  *  *  * 

1  On  Articles  of  Confederation,  see  generally  Fiske's  "Critical  Period  of  American 
History,"  pp.  92-102  ;  Frothiiigham's  "  Rise  of  the  Republic,"  pp.  501-572.  For  the  ju- 
diciary contemplated  by  the  Articles,  see  a  valuable  essay  entitled  "  The  Predecessor  of 
the  Supreme  Court,"  by  Professor  Jameson  in  "  P^ssays  in  the  Constitutional  History 
of  the  United  States  "  (1889).  "It  is  obviously  impossible,"  he  says,  at  page  34  of 
the  essay  referred  to,  "  to  discuss  here  the  various  cases  decided  by  the  court,  though 


INTRODUCTION.  11 


THE   CONSTITUTION   OF   THE   UNITED   STATES,  1789. 

Art.  I.,  Sect.  8.  The  Congress  shall  have  power  *  *  *  To  regu- 
late commerce  with  foreign  nations,  and  among  the  several  States 
and  with  the  Indian  tribes  ; 

To  establish  an  uniform  rule  of  naturalization  *  *  * ; 

To  constitute  tribunals  inferior  to  the  Supreme  Court ; 

To  define  and  punisli  piracies  and  felonies  committed  on  the  high 
seas,  and  offences  against  the  law  of  nations  ; 

To  declare  war,  grant  letters  of  marque  and  reprisal,  and  make  rules 
coticerning  captures  on  land  and  water ; 

Section  10.  No  State  shall  enter  into  any  treaty  alliance,  or  con- 
federation ;  grant  letters  of  marque  or  reprisal.  *  *  * 

No  State  shall,  without  the  consent  of  Congress,  lay  any  duty  of 
tonnage,  keep  troops  or  ships  of  war  in  time  of  peace,  enter  into  any 
agreement  or  compact  with  another  State,  or  with  a  foreign  power,  or 
engage  in  war,  unless  actually  invaded,  or  in  such  imminent  danger 
as  will  not  admit  of  delay. 

Art.  II.,  Sect.  2.  He  [the  President]  shall  have  power,  by  and  with 
the  advice  and  consent  of  the  Senate,  to  make  treaties,  provided  two 
thirds  of  the  Senators  present  concur ;  and  he  shall  nominate,  and  by 
and  with  the  advice  and  consent  of  the  Senate  shall  appoint  ambas- 
sadors, other  public  ministers  and  consuls.  *  *  * 

Sect.  3.  *  *  *  He  shall  receive  ambassadors  and  other  public  min- 
isters ;  he  shall  take  care  that  the  laws  be  faithfully  executed  and  shall 
commission  all  the  offices  of  the  United  States. 

Art.  III.,  Sect.  1.  The  judicial  power  of  the  United  States  shall  be 
vested  in  one  Supreme  Court,  and  in  such  inferior  courts  as  the  Con- 
gress may  from  time  to  time  ordain  and  establish.  *  *  * 

two  of  them  were  afterward  important  as  cases  in  the  Supreme  Court  of  tlie  United 
States,  —  tlie  cases  of  Penhallow  v.  Doane,  3  Dallas,  54,  and  Jennings  v.  Carson,  4 
Cranch,  2,  the  former  of  which,  in  1795,  settled  the  jurisdiction  of  the  Court  of 
Appeals.  Judge  Davis  computes  that 'sixty-five  cases  in  all  were  submitted  to  the 
Committees  of  Congress,  of  which  forty-nine  were  decided  by  them,  four  seem  to  have 
disappeared,  and  twelve  went  over  to  the  Court  of  Appeals  for  decision  ; '  and  that 
'fifty-seven  cases  in  all,  including  tlie  twelve  which  went  over,  were  submitted  to  the 
Court  of  Appeals,  and  all  were  disposed  of.'  Eight  more  of  its  cases  are  reported  in 
2  Dallas  (1-42),  making  one  hundred  and  eighteen  in  all."  Some  of  these  cases  are 
printed  infra.  See  also  Hon.  J.  C.  Bancroft  Davis'  monograph  entitled  "  The  Com- 
mittees of  the  Continental  Congress  chosen  to  hear  and  determine  Appeals  from  Courts 
of  Admiralty  and  the  Court  of  Appeals  in  Cases  of  Capture,  established  by  that  Body  "' 
(131  U.  S.,  Appendix  XII.-LXIII.).  This  matter  of  the  judiciary  under  the  Articles  of 
Confederation  is  briefly  but  admirably  treated  in  Chapter  III.  (pp.  .39-64)  of  Hampton 
L.  Carsons'  authoritative  "Supreme  Court  of  the  United  States,  its  History"  (IS'.tl). 
—  Ed. 


12  INTRODUCTION. 

Sect.  2.  The  judicial  power  shall  extend  to  all  cases,  in  law  and 
equity,  arising  under  this  Constitution,  the  laws  of  the  United  States, 
and  treaties  made,  or  which  shall  be  made,  under  their  authority ;  to  all 
cases  alfecting  ambassadors,  other  public  ministers,  and  consuls  ;  to 
all  cases  of  admiralty  and  maritime  jurisdiction  ^  to  controversies  to 
which  the  United  States  shall  be  a  party  ;  to  controversies  between 
two  or  more  States  ;  between  a  State  and  citizens  of  another  State ; 
between  citizens  of  different  States  ;  between  citizens  of  the  same  State 
claiming  lands  under  grants  of  different  States,  and  between  a  State, 
or  the  citizens  thereof,  and  foreign  states,  citizens,  or  subjects. 

In  all  cases  affecting  ambassadors,  other  public  ministers  and  consuls, 
and  those  in  which  a  State  shall  be  a  party,  the  Supreme  Court  shall 
have  original  jurisdiction.  In  all  the  other  cases  before  mentioned 
the  Supreme  Courts  shall  have  appellate  jurisdiction,  both  as  to  law 
and  fact,  with  such  exceptions  and  under  such  regulations  as  the  Con- 
gress shall  make. 

The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be  by 
jury  ;  and  such  trial  shall  be  held  in  the  State  where  the  said  crimes 
shall  have  been  committed  ;  but  when  not  committed  within  any  State, 
the  trial  shall  be  at  such  place  or  places  as  the  Congress  may  by  law 
have  directed. 

Sect.  3.  Treason  against  the  United  States  shall  consist  only  in 
levying  war  against  them,  or  in  adhering  to  their  enemies,  giving  them 
aid  and  comfort.  No  person  shall  be  convicted  of  treason  unless  on 
the  testimony  of  two  witnesses  to  the  same  overt  act,  or  on  confession 

1  Maritime  law  (unless  part  of  international  law)  has  the  effect  of  law  only  in  so 
far  as  it  Is  adopted  by  the  laws,  usages,  and  customs  of  the  particular  countr}', 
Norwich  Co.  V.  Wrifjht,  1872,  13  Wall.  104  ;  e8i)ecially  The  Lotlawaima,  1874,  21  Wall. 
558,  572-578,  where  the  subject  is  discussed  in  detail ;  The  Scotland,  1881,  105 
U.  S.  24,  where  cases  in  13  .Sb  21  Wallace  are  cited  and  approved. 

In  The  Manhassft,  1884,  18  Fed.  R.  918,  920-923,  this  subject  was  considered 
and  the  following  resume'  is  found  on  p.  922  of  the  judgment  of  Hughes,  J.  :  "From 
all  that  has  been  said,  these  things  would  seem  to  be  clear:  First,  that  maritime  law, 
existing  as  it  does  by  the  common  consent  of  nations,  and  being  a  general  law,  cannot 
be  clianyed  or  modified  as  to  its  general  operation  by  any  particular  sovereignty ; 
second,  that  it  has  force  in  any  country  only  by  its  adoption,  express  or  implied,  by 
that  country,  and  may  be  modified  in  its  special  operation  in  that  jurisdiction  at  the 
will  of  the  special  sovereignty  ;  third,  that  it  is  by  such  adoption  part  of  the  Federal  law 
of  the  United  States,  and  incapable  of  modification  by  state  enactment,  —  Congress 
having  exclusive  power,  under  the  constitution,  'to  regulate  commerce  with  foreign 
nations,  and  among  the  several  States,  and  with  the  Indian  tribes ;' and  the  judicial 
power  of  the  United  States,  '  exclusive  of  the  State  courts,'  extending  'to  all  cases  of 
admiralty  and  maritime  jurisdiction.'  " 

The  leading  cases  on  mercantile  and  maritime  law  are  collected  and  annotated  in 
Tudor's  Mercantile  Cases  (3d  ed.,  1884).  For  the  origin,  nature,  and  extent  of  admi- 
ralty jurisdiction  in  the  United  States,  see  Ames:  Cases  ou  Admiralty  (1901).  —  Ed. 


INTRODUCTION.  13 

in  open  court.     The  Congress  shall  have  power  to  declare  the  punish- 
ment of  treason.  *  *  * 

Art.Vr.  *  *  *  This  Constitution,  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  tliereof,  and  all  treaties  made,  or 
which  shall  be  made,  under  the  authority  of  the  United  States,  shall 
be  the  supreme  law  of  the  land ;  and  the  judges  in  every  State  shall 
be  bound  thereby,  anything  in  the  Constitution  or  laws  of  any  State 
to  the  contrary  notwithstanding.  *  *  * 


UNITED   STATES   v.    SMITH. 

Supreme  Court  of  the  United  States,   1820. 

(5    Wheatoji,  153.) 

This  was  an  indictment  for  piracy  against  the  prisoner  Thomas 
Smith,  before  the  circuit  court  of  Virginia,  under  the  act  of  Congress, 
of  the  3d  of  March,  1819,  c.  76,  which  provides  (s.  5)  "  That  if  any 
person  or  persons  whatsoever,  shall,  on  the  high  seas,  commit  the 
crime  of  piracy,  as  defined  by  the  law  of  nations,  and  such  offender 
or  offenders  shall  afterwards  be  brought  into,  or  found  in,  the  United 
States,  every  such  offender  or  offenders  shall,  upon  conviction  thereof, 
before  the  circuit  court  of  the  United  States  for  the  district  into  which 
he  or  they  may  be  brought,  or  in  which  he  or  they  shall  be  found, 
be  punished  with  death." 

Tlie  jury  found  a  special  verdict  as  follows :  '^  We  of  the  jury 
find,  that  the  prisoner,  Thomas  Smith,  in  the  month  of  March,  1819, 
and  others,  were  part  of  the  crew  of  a  private  armed  vessel,  called 
the  Creollo  (commissioned  by  the  government  of  Buenos  Ayres,  a 
colony  then  at  war  with  Spain),  and  lying  in  the  port  of  Margaritta ; 
that  in  the  month  of  March,  1819,  the  said  prisoner  and  others  of  the 
crew  mutinied,  confined  their  officers,  left  the  vessel,  and  in  the  said 
port  of  Margaritta  seized  by  violence  a  vessel  called  the  Irresistible,  a 
private  armed  vessel,  lying  in  that  port,  commissioned  by  the  govern- 
ment of  Artegas,  who  was  also  at  war  with  Spain  ;  that  the  said 
prisoner  and  others,  having  so  possessed  themselves  of  the  said  vessel, 
the  Irresistible,  appointed  their  officers,  proceeded  to  sea  on  a  cruise, 
without  any  documents  or  commission  whatever  ;  and  while  on  that 
cruise,  in  the  month  of  April,  1819,  on  the  high  seas,  committed  the 
offence  charged  in  the  indictment,  by  the  plunder  and  robbery  of 
the  Spanish  vessel  therein  mentioned.  If  the  plunder  and  robbery 
aforesaid  be  piracy  under  the  act  of  the  Congress  of  the  United  States, 
entitled,  'An  act  to  protect  the  commerce  of  the  United  States,  and 


14  INTRODUCTION. 

punish  the  crime  of  piracy,'  then  we  find  the  said  prisoner  guilty  ;  if 
the  phinder  and  robbery,  above  stated,  be  not  piracy  under  the  said  act 
of  Congress,  then  we  find  him  not  guilty." 

The  circuit  court  divided  on  the  question,  whether  this  be  piracy  as 
defined  by  the  law  of  nations,  so  as  to  be  punishable  under  the  act  of 
Congress,  of  the  3d  of  March,  1819,  and  thereupon  the  question  was 
certified  to  this  court  for  its  decision. 

Mr.  Justice  Story  delivered  the  opinion  of  the  court:  —  "  The  act 
of  Congress  upon  which  this  indictment  is  founded  provides,  that  if 
any  person  or  persons  whatsoever  shall,  upon  the  high  seas,  commit 
the  crime  of  pirac}^,  as  defined  by  the  law  of  nations,  and  such  offender 
or  offenders  shall  be  brought  into,  or  found  in  the  United  States,  every 
such  offender  or  offenders  shall,  upon  conviction  thereof,  etc.,  be  pun- 
ished with  death. 

"  The  first  point  made  at  the  bar  is,  whether  this  enactment  be  a 
constitutional  exercise  of  the  authority  delegated  to  Congress  upon 
the  subject  of  piracies.  The  Constitution  declares,  that  Congress 
shall  have  power  '  to  define  and  punish  piracies  and  felonies,  com- 
mitted on  the  high  seas,  and  offences  against  the  law  of  nations.'  The 
argument  which  has  been  urged  in  behalf  of  the  prisoner  is,  that  Con- 
gress is  bound  to  define,  in  terms,  the  offence  of  piracy,  and  is  not  at 
liberty  to  leave  it  to  be  ascertained  by  judicial  interpretation.  If  the 
argument  be  well  founded,  it  seems  admitted  by  the  counsel  that  it 
equally  applies  to  the  8th  section  of  the  act  of  Congress  of  1790,  ch.  9, 
which  declares,  that  robbery  and  murder  committed  on  the  high  seas 
shall  be  deemed  piracy  ;  and  yet,  notwithstanding  a  series  of  contested 
adjudications  on  this  section,  no  doubt  has  hitherto  been  breathed  of 
its  conformity  to  the  Constitution. 

"In  our  judgment,  the  construction  contended  for  proceeds  upon 
too  narrow  a  view  of  the  language  of  the  Coi'.stitution.  The  power 
given  to  Congress  is  not  merely  'to  define  and  punish  piracies  ;'  if  it 
Avere,  the  words  '  to  define  '  would  seem  almost  superfluous,  since  the 
power  to  punish  piracies  would  be  held  to  include  the  power  of  ascer- 
taining and  fixing  the  definition  of  the  crime.  And  it  has  been  very 
justly  observed,  in  a  celebrated  commentary,  that  the  definition  of 
piracies  might  have  been  left  without  inconvenience  to  the  law  of 
nations,  though  a  legislative  definition  of  them  is  to  be  found  in  most 
municipal  codes.  But  the  power  is  also 'given  to  define  and  punish 
felonies  on  the  high  seas,  and  offences  against  the  law  of  nations.' 
The  term  'felonies'  has  been  supposed  in  the  same  work  not  to 
have  a  very  exact  and  determinate  meaning  in  relation  to  offences  at 
the  common  law  committed  witliin  the  body  of  a  country.  However 
this  may  be,  in  relation  to  offences  on  the  high  seas,  it  is  necessarily 


INTRODUCTION.  15 

somewhat  indeterminate,  since  the  term  is  not  used  in  the  criminal 
jurisprudence  of  the  admiralty  in  the  technical  sense  of  the  common 
la\v.  Offences,  too,  against  the  law  of  nations  cannot,  with  any  ac- 
curacy, be  said  to  be  completely  ascertained  and  defined  in  any  public 
code  recognized  by  the  common  consent  of  nations.  In  respect,  there- 
fore, as  well  as  to  felonies  on  the  high  seas  as  to  offences  against  the 
law  of  nations,  there  is  a  peculiar  fitness  in  giving  the  power  to  define 
as  well  as  to  punish  ;  and  there  is  not  the  slightest  reason  to  doubt 
that  this  consideration  had  very  great  weight  in  producing  the  phrase- 
ology in  question. 

"  But,  supposing  Congress  were  bound  in  all  the  cases  included  in  the 
clause  under  consideration  to  define  the  offence,  still  there  is  nothing 
Avhich  restricts  it  to  a  mere  logical  enumeration  in  detail  of  all  the  facts 
constituting  the  offence.  Congress  may  as  well  define  by  using  a  term 
of  a  known  and  determinate  meaning,  as  by  an  express  enumeration  of 
all  the  particulars  included  in  that  term.  That  is  certain  which  is  by 
necessary  reference  made  certain.  When  the  act  of  1790  declares,  that 
any  person  who  shall  commit  the  crime  of  robbery,  or  murder  on  the 
high  seas,  shall  be  deemed  a  pirate,  the  crime  is  not  less  clearly  ascer- 
tained than  it  would  be  by  using  the  definitions  of  these  terms  as  they 
are  found  in  our  treatises  of  the  common  law.  In  fact,  by  such  a 
reference,  the  definitions  are  necessarily  included,  as  much  as  if  they 
stood  in  the  text  of  the  act.  In  respect  to  murder,  Avhere 'malice 
aforethought '  is  of  the  essence  of  the  offence,  even  if  the  common-law 
definition  were  quoted  in  express  terms,  we  should  still  be  driven  to 
deny  that  the  definition  was  perfect,  since  the  meaning  of  '  malice 
aforethought'  would  remain  to  be  gathered  from  the  common  law. 
There  would  then  be  no  end  to  our  difficulties,  or  our  definitions,  for 
each  would  involve  some  terms  which  might  still  require  some  new 
explanation.  Such  a  construction  of  the  Constitution  is,  therefore, 
wholly  inadvisable.  To  define  piracies,  in  the  sense  of  the  Constitu- 
tion, is  merely  to  enumerate  the  crimes  which  shall  constitute  piracy,' 
and  this  may  be  done,  either  by  a  reference  to  crimes  having  a  techni- 
cal name  and  determinate  extent,  or  by  enumerating  the  acts  in  detail, 
upon  which  the  punishment  is  inflicted. 

"It  is  next  to  be  considered,  whether  the  crime  of  piracy  is  defined 
by  the  law  of  nations  with  reasonable  certainty.  What  the  law  of 
nations  on  this  subject  is,  may  be  ascertained  by  consulting  the  works 
of  jurists,  writing  professedly  on  public  law;  or  by  the  general  usage 
and  practice  of  nations ;  or  by  judicial  decisions  recognizing  and 
enforcing  that  law.  There  is  scarcely  a  writer  on  the  law  of  nations 
who  does  not  allude  to  piracy  as  a  crime  of  a  settled  and  determinate 
nature ;  and    whatever  may  be  the  diversity  of   definitions    in    other 


16  INTRODUCTION. 

respects,  all  writers  concur  in  holding  that  robbery,  or  forcible  depre- 
dations upon  the  sea  animo  furandi,  is  piracy.  The  same  doctrine  is 
held  by  all  the  great  writers  on  maritime  law  in  terms  that  admit  of 
no  reasonable  doubt. 

"  The  common  law,  too,  recognizes  and  punishes  piracy  as  an  offence, 
not  against  its  own  municipal  code,  but  as  an  offence  against  the  law  of 
nations  (which  is  part  of  the  common  law),  as  an  offence  against  the 
universal  law  of  society,  a  pirate  being  deemed  an  enemy  of  tlie  human 
race.  Indeed,  until  the  statute  of  28th  of  Henry  VIII.,  ch.  15,  piracy 
was  punished  in  England  only  in  the  admiralty  as  a  civil-law  offence ; 
and  that  statute,  in  changing  the  jurisdiction,  has  been  universally 
admitted  not  to  have  changed  the  nature  of  the  offence.  Sir  Charles 
Hedges,  in  his  charge  at  the  admiralty  sessions,  in  the  case  of  Rex  v. 
Daivson,  5  State  Trials,  declared  in  emphatic  terms  that  'piracy  is 
only  a  sea  term  for  robbery,  jDiracy  being  a  robbery  committed  within 
the  jurisdiction  of  the  admiralty.'  Sir  Leoline  Jenkins,  too,  on  a  like 
occasion,  declared  that  '  a  robbery,  when  committed  upon  the  sea,  is 
what  we  call  piracy  ;'  and  he  cited  the  civil-law  writers,  in  proof. 

"  And  it  is  manifest  from  the  language  of  Sir  William  Blackstone, 
4  Bl.  Comm.  73,  in  his  comments  on  piracy,  tliat  he  considered  the 
common-law  definition  as  distinguishable  in  no  essential  respect  fi-cni 
that  of  the  law  of  nations.  So  that,  vs^liether  we  advert  to  writers  on 
the  common  law,  or  the  maritime  law,  or  the  law  of  nations,  we  shall 
find  that  they  universally  treat  of  piracy  as  an  offence  against  the  law 
of  nations,  and  that  its  true  definition  by  that  law  is  robbery  upon  the 
sea.  And  the  general  practice  of  all  nations  in  punishing  all  persons, 
whether  natives  or  foreigners,  who  have  committed  this  offence  against 
any  persons  whatsoever,  with  whom  they  are  in  amity,  is  a  conclusive 
proof  that  the  offence  is  supposed  to  depend,  not  upon  the  particular 
provisions  of  any  municipal  code,  but  upon  the  law  of  nations,  both 
for  its  definition  and  punishment.  We  have,  therefore,  no  hesitation 
in  declaring  that  piracy,  by  the  law  of  nations,  is  robbery  upon  tlie sea, 
and  that  it  is  sufficiently  and  constitutionally  defined  by  the  fifth 
section  of  the  act  of  1S19. 

"  Another  point  has  been  made  in  this  case,  which  is,  that  the  special 
verdict  does  not  contain  sufficient  facts  upon  which  the  court  can 
pronounce  that  the  prisoner  is  guilty  of  piracy.  "We  are  of  a  different 
opinion.  The  special  verdict  finds  that  the  prisoner  is  guilty  of  the 
plunder  and  robbery  charged  in  the  indictment;  and  finds  certain 
additional  facts  from  which  it  is  most  manifest  that  he  and  his  associates 
were,  at  tlie  time  of  committing  the  offence,  freebooters  upon  the  sea, 
not  under  the  acknowledged  authority,  or  deriving  protection  from  the 
flag  or  commission  of  any  government.     If,  under  such  circumstances, 


INTRODUCTION.  17 

the  offence  be  not  piracy,  it  is  difficult  to  conceive  any  which  would 
more  coui})letely  fit  the  definition. 

"^  It  is  to  be  certified  to  the  circuit  court  that  upon  the  facts  stated 
the  case  is  piracy,  as  defined  by  the  law  of  nations,  so  as  to  be  punish- 
able under  the  act  of  Congress  of  the  3d  of  March,  1819." 

iMr.  Justice  Livixgstoxk  dissented, 

On  the  ground  that  the  act  of  Congress  did  not  contain  such  a 
definition  of  piracy  as  the  constitution  requires.^ 


THE   SCOTIA. 

Supreme  Court  of  the  Uxited  States,  1871. 

(U  Wallace,  170.) 

Mr.  Justice  Strong  delivered  the  opinion  of  the  court. ^ 
It  must  be  conceded,  however,  that  the  rights  and  merits  of  a  case 
may  be  governed  by  a  different  law  from  that  which  controls  a  court 
in  which  a  remedy  may  be  sought.  The  question  still  remains,  what 
was  the  law  of  the  place  where  the  collision  occurred,  and  at  the  time 
when  it  occurred.  Conceding  that  it  was  not  the  law  of  the  United 
States,  nor  that  of  Great  Britain,  nor  the  concurrent  regulations  of 
the  two  governments,  but  that  it  was  the  law  of  the  sea,  was  it  the 
ancient  maritime  law,  that  which  existed  before  the  commercial  na- 
tions of  the  world  adopted  the  regulations  of  1863  and  1864,  or  the 
law  changed  after  those  regulations  were  adopted?  Undoubtedly, 
no  single  nation  can  change  the  law  of  the  sea.  That  law  is  of 
universal  obligation,  and  no  statute  of  one  or  two  nations  can  create 
obligations  for  the  world.  Like  all  the  laws  of  nations,  it  rests  upon  » 
the  common  consent  of  civilized  communities.  It  is  of  force,  not 
because  it  was  prescribed  by  any  superior  power,  but  because  it  has 
been  generally  accepted  as  a  rule  of  conduct.  Whatever  may  have 
been  its  origin,  whether  in  the  usages  of  navigation  or  in  the  ordi- 
nances of  maritime  states,  or  in  both,  it  has  become  the  law  of  the 
sea  only  by  the  concurrent  sanction  of  those  nations  who  may  be  said 
to  constitute  the  commercial  world.  Many  of  the  usages  which  pre- 
vail, and  which  have  the  force  of  law,  doubtless  originated  in  the 

1  In  speaking  of  this  case  Sir  Robert  Pliillimore  (1  Int.  Law,  480,  noted)  says  : 
"  Tlie  note  (a)  to  this  page  [16o]  contains  a  most  learned  and  carefnl  accumulation  of  all 
tlie  autliorities  on  the  subject  of  Piracy."  Lack  of  space  unfortunately  compels  its 
omission.  —  Ed. 

-  The  facts  of  the  case  are  omitted,  and  only  that  part  of  the  opinion  concerning 
the  question  of  international  law  is  given.  —  Ed. 

2 


18  INTRODUCTION. 

positive  prescriptions  of  some  single  state,  which  were  at  first  of 
limited  effect,  hxit  which  when  generally  accepted  became  of  universal 
obligation.  The  Rhodian  law  is  supposed  to  have  been  the  earliest 
system  of  marine  rules.  It  was  a  code  for  Rhodians  only,  but  it  soon 
became  of  general  authority  because  accepted  and  assented  to  as  a 
wise  and  desirable  system  by  other  maritime  nations.  The  same  may 
be  said  of  the  Amalphitan  table,  of  the  ordinances  of  the  Hanseatic 
League,  and  of  parts  of  the  marine  ordinances  of  Louis  XIV.  They 
all  became  the  law  of  the  sea,  not  on  account  of  their  origin,  but  by 
reason  of  their  acceptance  as  such.  And  it  is  evident  that  unless 
general  assent  is  efficacious  to  give  sanction  to  international  law, 
there  never  can  be  that  growth  and  development  of  maritime  rules 
which  tlie  constant  changes  in  the  instruments  and  necessities  of  navi- 
gation require.  Changes  in  nautical  rules  have  taken  place.  How 
have  they  been  accomplished,  if  not  by  the  concurrent  assent,  express 
or  understood,  of  maritime  nations?  When,  therefore,  we  find  such 
rules  of  navigation  as  are  mentioned  in  the  British  orders  in  council 
of  Jan.  9,  1863,  and  in  our  act  of  Congress  of  1864,  accepted  as 
obligatory  rules  by  more  than  thirty  of  the  principal  commercial 
states  of  the  world,  including  almost  all  which  have  any  shipping  on 
the  Atlantic  Ocean,  we  are  constrained  to  regard  them  as  in  part  at 
least,  and  so  far  as  relates  to  these  vessels,  the  laws  of  the  sea,  and 
as  having  been  the  law  at  the  time  when  the  collision  of  which  the 
libellants  complain  took  place. 

This  is  not  giving  to  the  statutes  of  any  nation  extraterritorial 
effect.  It  is  not  treating  them  as  general  maritime  laws,  but  is 
recognition  of  the  historical  fact  that,  by  common  consent  of  man- 
kind, these  rules  have  been  acquiesced  in  as  of  general  obligation. 
Of  that  fact  we  think  we  may  take  judicial  notice.  Foreign  muni- 
cipal laws  must  indeed  be  proved  as  facts,  but  it  is  not  so  with  the 
law  of  nations. 

The  consequences  of  this  ruling  are  decisive  of  the  case  before  us. 
The  violation  of  maritime  law  by  the  Berkshire  in  carrying  a  white 
light  (to  say  nothing  of  her  neglect  to  carry  colored  lights),  and  her 
carrying  it  on  deck  instead  of  at  her  masthead,  were  false  repre- 
sentations to  the  Scotia.  They  proclaimed  that  the  Berkshire  was  a 
steamer,  and  such  she  was  manifestly  taken  to  be.  The  movements 
of  the  Scotia  were  therefore  entirely  proper,  and  she  was  without 
fault. 

Decree  affirmed,  with  costs. 


INTRODUCTION.  19 


THE    ^^PAQUETTE   HABANA."     THE    ''LOLA.'' 

Sdpjbeme  Coubt  of  the  United  States,  1899. 

(175  United  States,  677.) 

During  the  Spanish- American  war  two  small  Spanish  fishing  smacks, 
the  Paquette  Habana  and  the  Lola  were  respectively  captured  at  sea 
by  the  gunboat  Castine  and  the  steamship  Dol^ihbi,  and  taken  by  their 
captors  into  Key  West,  Fla.,  where  they  were  libelled  and  condemned 
as  enemy's  property,  and  sold  under  decree  of  the  court.  On  appeal 
to  the  Supreme  Court  of  the  United  States,  the  question  before  the 
court  was,  are  fishing  smacks,  in  the  absence  of  municipal  law  or 
treaty,  protected  from  capture  by  the  law  of  nations,  and  is  such  law 
of  nations  part  of  the  municipal  law  of  the  United  States?^ 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court. 

International  law  is  part  of  our  law,  and  must  be  ascertained  and 
administered  by  the  courts  of  justice  of  appropriate  jurisdiction,  as 
often  as  questions  of  right  depending  upon  it  are  duly  presented  for 
their  determination.  For  this  purpose,  where  there  is  no  treaty,  and 
no  controlling  executive  or  legislative  act  or  judicial  decision,  resort 
must  be  had  to  the  customs  and  usages  of  civilized  nations  j  and,  as 
evidence  of  these,  to  the  works  of  jurists  and  commentators,  who,  by 
years  of  labor,  research,  and  experience,  have  made  themselves  pecu- 
liarly well  acquainted  with  the  subjects  of  which  they  treat.  Such 
works  are  resorted  to  by  judicial  tribunals,  not  for  the  speculations 
of  their  authors  concerning  what  the  law  ought  to  be,  but  for  trust- 
worthy evidence  of  what  the  law  really  is.  Hilton  v.  Gmjot,  159 
U.  S.  113,  163,  164,  214,  215. ^ 

Wheaton  places,  among  the  principal  sources  of  international  law, 
"text-writers  of  authority,  showing  what  is  the  approved  usage  of 
nations,  or  the  general  opinion  respecting  their  mutual  conduct,  with 
the  definitions  andfnodifications  introduced  by  general  consent."  As 
to  these  he  forcibly  observes:  "Without  wishing  to  exaggerate  the 
importance  of  these  writers,  or  to  substitute,  in  any  case,  their 
authority  for  the  principles  of  reason,  it  may  be  affirmed  that  they 
are  generally  impartial  in  their  judgment.  They  are  witnesses  of  the 
sentiments  and  usages  of  civilized  nations,  and  the  weight  of  their 
testimony  increases  every  time  that  their  authority  is  invoked  by 
statesmen,  and  every  year  that  passes  without  the  rules  laid  down 

1  Tliis  brief  statement  is  substituted  for  that  of  the  report  and  only  part  of  the 
opinion  of  the  court  is  given  . —  Ed. 

2  Compare  the  language  of  Lord  Coleridge,  C.  J.,  in  The  Queen  v.  Keyn,  infra.  —  Ed. 


20  INTRODUCTION. 

in  their  works  being  impugned  by  the  avowal  of  contrary  principles." 
Wheaton's  International  Law  (8th  ed.),  §  15. 

Chancellor  Kent  says :  "  In  the  absence  of  higher  and  more  authori- 
tative sanctions,  the  ordinances  of  foreign  states,  the  opinions  of  emi- 
nent statesmen,  and  the  writings  of  distinguished  jurists,  are  regarded 
as  of  great  consideration  on  questions  not  settled  by  conventional  law. 
In  cases  where  the  principal  jurists  agree,  the  presumption  will  be 
very  great  in  favor  of  the  solidity  of  their  maxims;  and  no  civilized 
nation,  that  does  not  arrogantly  set  all  ordinary  law  and  justice  at 
defiance,  will  venture  to  disregard  the  uniform  sense  of  the  established 
writers  on  international  law."     1  Kent  Com.  18. 

This  review  of  the  precedents  and  authorities  on  the  subject  appears 
to  us  abundantly  to  demonstrate  that  at  the  present  day,  by  the  general 
consent  of  the  civilized  nations  of  the  world,  and  independently  of 
any  express  treaty  or  other  public  act,  it  is  an  established  rule  of 
international  law,  founded  on  considerations  of  humanity  to  a  poor 
and  industrious  order  of  men,  and  of  the  mutual  convenience  of  bel- 
ligerent states,  that  coast-fishing  vessels,  with  their  implements  and 
supplies,  cargoes  and  crews,  unarmed,  and  honestly  pursuing  their 
peaceful  calling  of  catching  and  bringing  in  fresh  fish,  are  exempt 
from  capture  as  prize  of  war. 

The  exemption,  of  course,  does  not  apply  to  coast  fishermen  or  their 
vessels,  if  employed  for  a  warlike  purpose,  or  in  such  a  way  as  to 
give  aid  or  information  to  the  enemy;  nor  when  military  or  naval 
operations  create  a  necessity  to  which  all  private  interests  must  give 
way. 

Nor  has  the  exemption  been  extended  to  ships  or  vessels  employed 
on  the  high  sea  in  taking  whales  or  seals,  or  cod  or  other  fish,  which 
are  not  brought  fresh  to  market,  but  are  salted  or  otherwise  cured 
and  made  a  regular  article  of  commerce. 

This  rule  of  international  law  is  one  which  prize  courts,  adminis- 
tering the  law  of  nations,  are  bound  to  take  judicial  notice  of,  and  to 
give  effect  to,  in  the  absence  of  any  treaty  or  otli(^  public  act  of  their 
own  government  in  relation  to  the  matter. 

Calvo,  in  a  passage  already  quoted,  distinctly  affirms  that  the  ex- 
emption of  coast-fishing  vessels  from  capture  is  perfectly  justiciable, 
or.  in  other  words,  of  judicial  jurisdiction  or  cognizance.  Calvo, 
§  2368.  Nor  are  judicial  precedents  wanting  in  support  of  the  view 
that  this  exemption,  or  a  somewhat  analogous  one,  should  be  recog- 
nized and  declared  by  a  prize  court. 

By  the  practice  of  all  civilized  nations,  vessels  employed  only  for 
the  purposes  of  discovery  or  science  are  considered  as  exempt  from 
the  contingencies  of  war,  and  therefore  not  subject  to  capture.     It 


INTRODUCTION.  21 

has  been  usual  for  the  government  sending  out  such  an  expedition  to 
give  notice  to  other  powers;  but  it  is  not  essential.  1  Kent  Com. 
91,  note ;  Halleck,  c.  20,  §  22 ;  Calvo,  §  2376 ;  Hall,  §  138. 

In  IS  13,  while  the  United  States  were  at  war  with  England,  an 
American  vessel,  on  her  voyage  from  Italy  to  the  United  States,  was 
captured  by  an  English  ship,  and  brought  into  Halifax  in  Nova  Scotia, 
and  with  her  cargo  cundemned  as  lawful  prize  by  the  Court  of  Vice- 
Admiralty  there.  But  a  petition  for  the  restitution  of  a  case  of  paint- 
ings and  engravings  which  had  been  presented  to  and  were  owned  by 
the  Academy  of  Arts  in  Philadelphia,  was  granted  by  Dr.  Croke,  the 
judge  of  that  court,  who  said :  "  The  same  law  of  nations,  which  pre- 
scribes that  all  property  belonging  to  the  enemy  shall  be  liable  to  con- 
fiscation, has  likewise  its  modifications  and  relaxations  of  that  rule. 
The  arts  and  sciences  are  admitted,  amongst  all  civilized  nations,  as 
forming  an  exception  to  the  severe  rights  of  welfare,  and  as  entitled 
to  favor  and  protection.  They  are  considered  not  as  the  j^fculitim  of 
this  or  of  that  nation,  but  as  the  property  of  mankind  at  large,  and 
as  belonging  to  the  common  interests  of  the  whole  species."  And  he 
added  that  there  had  been  "  innumerable  cases  of  the  mutual  exercise 
of  this  courtesy  between  nations  in  former  wars."  The  Marquis  de 
Somerueles,   Stewart  Adm.    (Xova  Scotia),  445,  4S2. 

In  18G1,  during  the  war  of  the  rebellion,  a  similar  decision  was 
made,  in  the  District  Court  of  the  United  States  for  the  Eastern 
District  of  Pennsylvania,  in  regard  to  two  cases  of  books  belonging 
and  consigned  to  a  universit}"  in  North  Carolina.  Judge  Cadwalader, 
in  ordering  these  books  to  be  liberated  from  the  custody  of  the  mar- 
shal, and  restored  to  the  agent  of  the  university,  said:  "Though  this 
claimant,  as  the  resident  of  a  hostile  district,  would  not  be  entitled 
to  restitution  of  the  subject  of  a  commercial  adventure  in  books,  the 
purpose  of  the  shipment  in  question  gives  to  it  a  different  character. 
The  United  States,  in  prosecuting  hostilities  for  the  restoration  of 
their  constitutional  authority,  are  compelled  incidentally  to  confiscate 
property  captured  at  sea,  of  which  the  proceeds  would  otherwise  in- 
crease the  wealth  of  that  district.  But  the  United  States  are  not  at 
war  with  literature  in  that  part  of  their  territory,"  He  then  referred 
to  the  decision  in  Nova  Scotia,  and  to  the  French  decisions  upon  cases 
of  fishing  vessels,  as  precedents  for  the  decree  which  he  was  about 
to  pronounce;  and  he  added  that,  without  any  such  precedents,  he 
should  have  had  no  difficulty  in  liberating  these  books.  The  Amelia, 
4  Philadelphia,  417.^ 

1  Dissenting  opinion  of  Fuller,  C.  J.,  in  which  Harlan  and  McKenna,  JJ.,  con- 
curred, is  omitted.  The  opinion  of  the  late  Mr.  Justice  Gray  contains  an  elaborate  ex- 
amination of  the  authorities,  both  precedents  and  text-books,  and  siiould  be  read  in  full. 


22  INTRODUCTION. 

In  the  case  of  the  Charming  Betsy,  1804,2  Cranch,  64,  118,  Marshall,  C.  J.,  said: 
'^' It  lias  also  been  observed  that  an  act  of  Congress  ougiit  never  to  be  construed  to 
violate  the  law  of  nations  if  any  other  possible  construction  remains,  and  consequently 
can  never  be  construed  to  violate  neutral  rights,  or  to  affect  neutral  commerce  further 
tlian  is  warranted  by  the  law  of  nations  as  understood  in  this  country." 

In  the  case  of  the  Nereide,  1815,  9  Cranch,  388,  423,  the  same  judge  said  :  "  Till  such 
an  act  [of  Congress]  be  passed,  the  court  is  bound  by  the  law  of  nations,  which  is  a 
part  of  the  law  of  the  land."     See  also  Talbot  v.  Seeman,  1801,  1  Cranch,  1,  43. 

In  the  case  of  Bentzon  v.  Boijle,  1815,  9  Cranch,  191,  198,  Marshall,  C.  J.,  said : 
"  The  law  of  nations  is  the  great  source  from  which  we  derive  those  rules  respecting 
belligerent  and  neutral  rights  which  are  recognized  by  all  civilized  states  throughout 
Europe  and  America.  This  law  is  in  part  unwritten,  and  in  part  conventional.  To 
ascertain  that  which  is  unwritten,  we  resort  to  the  great  principles  of  reason  and 
justice;  but,  as  these  principles  will  be  differently  understood  by  different  nations 
under  different  circumstances,  we  consider  them  as  being,  in  some  degree,  fixed  and 
rendered  stable  by  a  series  of  judicial  decisions.  The  decisions  of  the  courts  of  every 
country,  so  far  as  they  are  founded  upon  the  law  common  to  every  country,  will  be 
received,  not  as  authority,  but  with  respect.  The  decisions  of  the  courts  of  every 
country  show  how  the  law  of  nations,  in  the  given  case,  is  understood  in  that  country, 
and  will  be  considered  in  adopting  the  rule  which  is  to  prevail  in  this." 

Bishop  says  ("Criminal  Law,"  7th  ed.  60):  "Doubtless  if  the  legislature,  by  words 
admitting  of  no  interpretation,  commands  a  court  to  violate  the  law  of  nations,  the 
judges  have  no  alternative  but  to  obey.  Yet  no  statutes  have  ever  been  framed  in 
form  thus  conclusive;  and  if  a  case  is  prima  facie  within  the  legislative  words,  still  a 
court  will  not  take  the  jurisdiction  should  the  law  of  nations  forbid."  Again  (p.  69) : 
"  All  statutes  are  to  be  construed  in  connection  with  one  another,  with  the  common 
law,  with  the  constitution,  and  with  the  law  of  nations." 

On  international  law  as  interpreted  and  enforced  in  law  courts,  see  the  admirable 
address  of  Hon.  Simeon  E.  Baldwin  before  the  meeting  of  the  International  Law 
Association  at  Rouen,  1900,  on  "  The  Part  taken  by  Courts  of  Justice  in  the  Develop- 
ment of  International  Law."  —  Ed. 


PART  I. 

INTERNATIONAL   RELATIONS   IN   TIME   OF  PEACE. 


CHAPTER   I. 
STATES  — TERRITORIAL  RIGHTS. 


Section  2.  —  (a)    Definition  and  Character  of  Sovereign  States. 


YRISARRI    V.    CLEMENT. 
Common  Pleas,  1825. 

(2   Cnrrington  Sj-  Payne}  Nisi  Prius,  223.) 

[In  an  action  brought  by  the  plaintiff  against  defendant  for  a  libel 
published  in  the  •'' Morning  Chronicle,"  it  appeared  that  the  plaintiff 
had  been  appointed  minister  and  diplomatic  agent  to  Great  Britain ; 
that  he  employed  Messrs.  Hullett  and  Widder  to  raise  a  loan  of  £100,- 
000  for  the  service  of  Chili ;  that  the  '<  Morning  Chronicle  "  imputed 
fraud  to  plaintiff  in  the  application  of  tlie  money  raised  by  him.] 

Best,  C.  J.  — It  occurs  to  me  at  present,  that  there  is  this  dis- 
tinction. If  a  foreign  state  is  recognized  by  this  country,  it  is  not 
necessary  to  prove  that  it  is  an  existing  state  ;  but  if  it  is  not  so 
recognized,  such  proof  becomes  necessary.  There  are  hundreds  in 
India,  and  elsewhere,  that  are  existing  states,  though  they  are  not 
recognized.  I  take  the  rule  to  be  this  —  if  a  body  of  persons  assemble 
together  to  protect  themselves,  and  support  their  own  independence,  and 

^  Only  so  much  of  tlie  opinion  is  given  as  relates  to  Chili  as  a  "  foreign  state."  On 
leave  given  the  court  "  thouglit  that  the  opinion  of  the  Chief  Justice  which  he  gave  at 
the  trial  was  correct.  But  tliey  decided  on  another  ground,  viz.  the  incorrectness  of 
some  material  innuendoes,  wliich  was  not  adverted  to  at  Nisi  Prius,  and  tlierefore 
made  the  rule  absolute  for  a  new  trial  "  (2  Car.  &  P.  229).  — Ed. 


24  STATES.  [part  I. 

make  laws,  and  have  courts  of  justice,  that  is  evidence  of  their  being  a 
state.  We  have  had,  certain!}',  some  evidence  here  to-day  that  these 
provinces  formerl}^  belonged  to  Spain  ;  but  it  would  be  a  strong  thing 
to  say,  that  because  they  once  belonged,  therefore  they  must  always 
belong.  We  have  recognized  lately  some  of  these  states.  It  makes 
no  difference  whetlier  they  formerly  belonged  to  Spain,  if  they  do  not 
continue  to  acknowledge  it,  and  are  in  possession  of  a  force  sufficient 
to  support  themselves  in  opposition  to  it.  This  is  my  present  opinion  ; 
but  I  will  give  my  brother  Taddy  leave  to  move  the  court  upon  the 
subject. 


THE    REPUBLIC    OF   HONDURAS,   APPELLANT,   v.   MARCO 
AURELIO   SOTO,   RESPONDENT. 

Court  of  Appeals,   1889. 
(112  Xew   York,  310.) 

RuGER,  Ch.  J.  Section  3268  of  the  Code  of  Civil  Procedure  provides 
that  a  defendant,  in  an  action  brought  in  a  court  of  record,  may 
require  security  for  costs,  in  cases,  among  others,  where  the  plaintiff 
was,  when  the  action  was  commenced,  either  ''a  person  residing  with- 
out the  state;  "  or  "a  foreign  corporation."  The  plaintiff  claims  to  be 
a  foreign  independent  state. 

It  is  urged  by  the  plaintiff  that  it  is  neither  a  person  nor  a  foreign 
corporation,  within  the  meaning  of  the  Code.  It  is  not  disputed  but 
that  the  plaintiff  is  an  independent  government,  recognized  as  such  by 
the  United  States,  and  capable  of  entering  into  contracts  and  acquiring 
property,  as  well  as  competent,  through  the  rule  of  comity,  of  bringing 
and  maintaining  actions  in  the  courts  of  this  country  ;  but  it  is  claimed 
that  it  does  not  come  within  the  description  of  legal  entities  authorized 
to  require  security  for  costs.  That  it  is  within  the  spirit  of  the  enact- 
ment, we  think  cannot  be  disputed,  and  we  are  also  of  the  opinion 
that  it  is  within  the  letter  as  well. 

Vattel  defines  "  nations  or  states  to  be  bodies  politic,  societies  of 
men  united  together  for  the  purpose  of  promoting  their  mutual  safety 
and  advantage  by  the  joint  effort  of  their  combined  strength.  Such  a 
society  has  her  affairs  and  her  interests.  She  deliberates  and  takes 
resolutions  in  common,  thus  becoming  a  moral  person,  who  possesses 
an  understanding  and  a  will  peculiar  to  himself,  and  is  susceptible  of 
obligations  and  rights."  (Law  of  Nations,  1 ;  Wheaton's  International 
Law,  chap.  2,  §§  1,  2;  Bouvier's  Institutes,  title,  "  Nation.") 


CHAP.  I.]  TEXAS    V.    WHITE.  25 

That  such  a  being  constitutes  a  legal  entity,  capable  of  acquiring 
and  enjoying  property  and  protecting  itself  from  injuries  thereto  in 
the  courts  of  foreign  countries,  has  long  been  recognized  and  estab- 
lished in  the  tribunals  of  civilized  nations.  {Repiddic  of  Mexico  v.  De 
Arrangoiz,  5  Dner,  636;  Hullet  v.  King  of  Sjjaiii,  1  Dow.  &  C.  169; 
C]verokee_Xation  v.    Georgia,  5_FeterSj_52.) 

There  can  be  no  doubt  but  that  under  ^itle  2,  chapter  10,  part  3,  of 
the  Revised  Statutes,  providing  for  security  for  costs  in  an  action 
brought  by  any  plaintiff,  not  residing  within  the  jurisdiction  of  the 
court,  that  foreign  states  and  nations  were  required  to  give  such 
security,  and  we  do  not  think  that  the  provisions  of  the  Code  were 
intended  to  change  the  law  in  that  respect. 

Section  3268  of  the  Code  is  stated  to  be  a  re-enactment  of  the 
previous  statute,  and  it  cannot,  we  think,  have  been  intended  thereby 
to  take  away  the  right  which  resident  defendants  had  to  require 
security  for  costs.  Xo  reason  is  seen  for  such  a  change,  and  we 
do  not  think  any  was  intended  to  be  made.  The  word  '•'  person  " 
was,  we  think,  used  in  its  enlarged  sense,  as  comprising  all  legal 
entities  except  foreign  corporations,  which  were  authorized  to  bring 
actions  in  this  state.  In  that  sense  it  embraces  moral  persons  having 
legal  rights,  capable  of  entering  into  contracts  and  incurring  obli- 
gations, as  "well  as  natural  persons.  The  statute  must  be  construed 
with  reference  to  the  objects  it  had  in  view,  the  evils  intended  to 
be  remedied  and  the  benefits  expected  to  be  derived  from  it ;  and, 
as  thus  construed,  we  can  see  no  reason  why  the  plaintiff  is  not 
included  within  the  description  of  persons  intended  to  be  subjected 
to  its  obligations.-^ 


TEXAS  V.  WHITE,  1868. 

(7  Wall.  700,  720-721,  725-726.) 

Chase,  C.  J.  Some  not  unimportant  aid,  however,  in  ascertaining 
the  true  sense  of  the  Constitution  may  be  derived  from  considering 
what  is  the  correct  idea  of  a  State,  apart  from  any  union  or  confed- 
eration with  other  States.  The  poverty  of  language  often  compels  the 
employment  of  terms  in  quite  different  significations  ;  and  of  this 
hardly  any  example  more  signal  is  to  be  found  than  in  the  use  of  the 
word  we  are  now  considering.  It  would  serve  no  useful  purpose  to 
attempt  an  enumeration  of  all  the  various  senses  in  which  it  is  used. 
A  few  only  need  be  noticed. 

^  Facts  and  part  of  opinion  omitted.  —  Ed. 


26  STATES.  [part  I, 

It  describes  sometimes  a  people  or  community  of  individuals  united 
more  or  less  closely  in  political  relations,  inhabiting  temporarily  or 
permanentl}'' the  same  country;  often  it  denotes  only  the  country  or 
territorial  region  inhabited  by  such  a  community  ;  not  unfrequently  it 
is  applied  to  the  government  under  which  the  people  live  ;  at  other 
times  it  represents  the  combined  idea  of  people,  territory,  and 
government. 

It  is  not  difficult  to  see  that  in  all  these  senses  the  primary  con- 
ception is  that  of  a  people  or  community.  The  people,  in  whatever 
territory  dwelling,  either  temporarily  or  permanently,  and  whether 
organized  under  a  regular  government,  or  united  by  looser  and  less 
definite  relations,  constitute  the  state. 

This  is  undoubtedly  the  fundamental  idea  upon  which  the  republican 
institutions  of  our  own  country  are  established.  It  was  stated  very 
clearly  by  an  eminent  judge, ^  in  one  of  the  earliest  cases  adjudicated 
by  this  court,  and  we  are  not  aware  of  anything,  in  any  subsequent 
decision,  of  a  different  tenor. 

In  the  Constitution  the  term  state  most  frequently  expresses  the 
combined  idea  just  noticed,  of  people,  territory,  and  government.  A 
state,  in  the  ordinary  sense  of  the  Constitution,  is  a  political  commun- 
ity of  free  citizens,  occupying  a  territory  of  defined  boundaries,  and 
organized  under  a  government  sanctioned  and  limited  by  a  written 
constitution,  and  established  by  the  consent  of  the  governed.  It  is 
the  union  of  such  states,  under  a  common  constitution,  which  forms 
the  distinct  and  greater  political  unit,  which  that  Constitution 
designates  as  the  United  States,  and  makes  of  the  people  and  states 
which  compose  it  one  peojjle  and  one  country. 

The  use  of  the  word  in  this  sense  hardly  requires  further  remark. 
In  the  clauses  which  impose  prohibitions  upon  the  States  in  respect 
to  the  making  of  treaties,  emitting  of  bills  of  credit,  and  laying 
duties  of  tonnage,  and  which  guarantee  to  the  States  representation 
in  the  House  of  Eepresentatives  and  in  the  Senate,  are  found  some 
instances  of  this  use  in  the  Constitution.  Others  will  occur  to  every 
mind. 

But  it  is  also  used  in  its  geographical  sense,  as  in  the  clauses  which 
require  that  a  representative  in  Congress  shall  be  an  inhabitant  of  the 
State  in  which  he  shall  be  cliosen,  and  that  the  trial  of  crimes  shall  be 
held  within  the  State  where  committed. 

And  there  are  instances  in  which  the  principal  sense  of  the  word 
seems  to  be  that  primary  one  to  which  we  have  adverted,  of  a  peo- 
ple or  political  community,  as  distinguished  from  a  government. 

In  this  latter  sense  the  word  seems  to  be  used  in  the  clause  which 
1  Mr.  Justice  Iredell  in  Penhallow  v.  Doane's  Admrs.,  3  Dallas,  93. 


CHAP.  I.]  TEXAS    V.    WHITE.  27 

provides  that  the  United  States  shall  guarantee  to  every  State  in  the 
Union  a  republican  form  of  government,  and  shall  protect  each  of 
them  against  invasion. 

In  this  clause  a  plain  distinction  is  made  between  a  State  and  the 
government  of  a  State. 

Having  thus  ascertained  the  senses  in  which  the  word  state  is 
employed  in  the  Constitution,  we  will  proceed  to  consider  the  proper 
application  of  what  has  been  said.  *  *  * 

But  the  perpetuity  and  indissolubility  of  the  Union,  by  no  means 
implies  the  loss  of  distinct  and  individual  existence,  or  of  the  right  of 
self-government  by  the  States.  Under  the  Articles  of  Confederation 
each  State  retained  its  sovereignty,  freedom,  and  independence,  and 
every  power,  jurisdiction,  and  right  not  expressly  delegated,  to  the 
United  States.  Under  the  Constitution,  though  the  powers  of  the 
States  were  much  restricted,  still,  all  powers  not  delegated  to  the  United 
States,  nor  prohibited  to  the  States,  are  reserved  to  the  States  respec- 
tively, or  to  the  people.  And  we  have  already  had  occasion  to  remark 
at  this  term,  that  "  the  people  of  each  State  compose  a  State,  having 
its  own  government,  and  endowed  with  all  the  functions  essential  to 
separate  and  independent  existence,"  and  that  "  without  the  States  \\i 
union,  there  could  be  no  such  political  body  as  the  United  States."  ^ 
Not  only,  therefore,  can  there  be  no  loss  of  separate  and  independent 
autonomy  to  the  States,  through  their  union  under  the  Constitution, 
but  it  may  be  not  unreasonably  said  that  the  preservation  of  the  States, 
and  the  maintenance  of  their  governments,  are  as  much  within  the 
design  and  care  of  the  Constitution  as  the  preservation  of  the  Union 
and  the  maintenance  of  the  national  government.  The  Constitution, 
in  all  its  provisions,  looks  to  an  indestructible  Union,  composed  of 
indestructible  States. 

When,  therefore,  Texas  became  one  of  the  United  States,  she  entered 
into  an  indissoluble  relation.  All  the  obligations  of  perpetual  union, 
and  all  the  guaranties  of  republican  government  in  the  Union,  attached 
at  once  to  the  State.  The  act  which  consummated  her  admission  into 
the  Union  was  something  more  than  a  compact  ;  it  was  the  incorpora- 
tion of  a  new  member  into  the  political  body.  And  it  was  final.  The 
union  between  Texas  and  the  other  States  was  as  complete,  as  per- 
petual, and  as  indissoluble  as  the  union  between  the  original  States. 
There  was  no  place  for  reconsideration,  or  revocation,  except  through 
revolution,  or  through  consent  of  the  States.^ 

1  Counti/    of  Lane  v.  The  State  of  Oregon,  1868,  7  Wall.  71,  76.  — Ed. 

-  Equality  is  the  necessary  consequence  of  independence  and  sovereignty,  in  speak- 
ing of  whicli,  Cliief  Justice  Marshall  says:  "In  this  commerce  [slave  trade]  thus 
sanctioned  by  universal  assent,  every  nation  had  an  equal  right  to  engage.     How  ia 


28  STATES.  [part  I. 

KEITH   V.    CLARK. 

Supreme  Court  of  the  United  States,  1878. 

(97  United  States,  454.) 

[The  State  of  Tennessee  organized  the  Bank  of  Tennessee  in  1838, 
and  agreed  by  a  clause  in  the  Charter  to  receive  all  its  issues  of  cir- 
culating notes  in  payment  of  taxes.  A  constitutional  amendment 
adopted  in  1865  declared  the  issues  of  the  bank  during  the  insurrec- 
tionary period  void  and  forbade  their  receipt  for  taxes.  The  plaintiff 
tendered  forty  dollars  in  bankbills  issued  during  the  insurrectionary 
period  but  defendants  refused  to  receive  them  in  payment  of  taxes. 
The  plaintiff  thereupon  paid  under  protest  forty  dollars  in  lawful 
money,  to  recover  which  sum  he  brought  suit.  From  judgment  of  the 
Supreme  Court  of  Tennessee  in  favor  of  the  defendant,  the  suit  was 
brought  by  writ  of  error  before  the  Supreme  Court  of  the  United 
States.] 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court.^  *  *  * 

In  entering  upon  this  inquiry  we  start  with  the  proposition,  that 
unless  there  is  something  in  the  relation  of  the  State  of  Tennessee  and 
the  bank,  after  the  date  mentioned,  to  the  government  of  the  United 
States,  or  something  in  the  circumstances  under  which  the  notes  now 
sued  on  were  issued,  that  will  repel  the  presumption  of  a  contract 
under  the  twelfth  section,  or  will  take  the  contract  out  of  the  opera- 
tion of  the  protecting  clause  of  the  Federal  Constitution ;  this  court 
has  established  already  that  there  was  a  valid  contract  to  receive  them 
for  taxes,  and  that  the  law  which  forbade  this  to  be  done  is  uncon- 
stitutional and  void. 

Those  who  assert  the  exception  of  these  notes  from  the  general 

liis  right  to  be  lost  ?  Each  may  renounce  it  for  its  own  people  ;  but  can  this  renuncia- 
tion affect  others  ? 

"  No  principle  of  general  law  is  more  universally  acknowledged  than  the  perfect 
equality  of  nations.  Russia  and  Geneva  have  equal  rights.  It  results  from  this 
equality  that  no  one  can  rightfully  impose  a  rule  on  anotiier.  Each  legislates  for 
itself,  but  its  legislation  can  operate  on  itself  alone.  A  right,  then,  which  is  vested  in 
all  by  the  consent  of  all,  can  be  devested  only  by  consent ;  and  this  trade,  in  which 
all  have  participated,  must  remain  lawful  to  those  who  cannot  be  induceJ  to  relinquish 
it.  As  no  nation  can  prescribe  a  rule  for  others,  none  can  make  a  law  of  nations  ;  and 
this  traffic  remains  lawful  to  those  whose  governments  have  not  forbidden  it"  (The 
Ante/ope,  1825,  10  Wheat.  G6,  122).  — Ed. 

1  Part  of  the  opinion  relating  to  the  question  of  jurisdiction  is  omitted.  — Ed. 


CHAP.  I.]  KEITH    V.    CLARK.  29 

propositiou  are  not  very  well  agreed  as  to  the  reasons  on  which  it  shall 
rest,  and  we  must  confess  that,  as  they  are  presented  to  us,  they  are 
somewhat  vague  and  shadowy.  They  may  all,  however,  as  far  as  we 
understand  them,  be  classed  under  three  principal  heads. 

1.  The  first  is  to  us  an  entirely  new  proposition,  urged  with  much 
earnestness  by  the  counsel  who  argued  the  case  orally  for  the  defendant. 

It  is,  in  substance,  that  what  was  called  the  State  of  Tennessee  prior 
to  the  6th  of  May,  1861,  became,  by  the  ordinance  of  secession  passed 
on  that  day,  subdivided  into  two  distinct  political  entities,  each  of 
which  was  a  State  of  Tennessee.  One  of  them  was  loyal  to  the 
Federal  government,  the  other  was  engaged  in  rebellion  against  it. 
One  State  was  composed  of  the  minority  who  did  not  favor  secession, 
the  other  of  the  majority  who  did.  That  these  two  States  of  Ten- 
nessee engaged  in  a  public  war  against  each  other,  to  which  all  the 
legal  relations,  rights,  and  obligations  of  a  public  war  attached.  That 
the  government  of  the  United  States  was  the  ally  of  the  loyal  State 
of  Tennessee,  and  the  confederated  rebel  States  were  the  allies  of  the 
disloyal  State  of  Tennessee.  That  the  loyal  State  of  Tennessee,  with 
the  aid  of  her  ally,  conquered  and  subjugated  the  disloyal  State  of 
Tennessee,  and  by  right  of  conquest  imposed  upon  the  latter  such 
measujL'e  of  punishment  and  such  system  of  law  as  it  chose,  and  that 
by  the  law  of  conquest  it  had  the  right  to  do  this.  That  one  of  the 
laws  so  imposed  by  the  conquering  State  of  Tennessee  on  the  con- 
quered State  of  Tennessee  was  this  one,  declaring  that  the  issues  of 
the  bank  during  the  temporary  control  of  affairs  by  the  rebellious 
State  was  to  be  held  void ;  and  that,  as  conqueror  and  by  right  of  con- 
quest, the  loyal  State  had  power  to  enact  this  as  a  valid  law. 

It  is  a  sufficient  answer  to  this  fanciful  theory  that  the  division  of 
the  State  into  two  States  never  had  any  actual  existence  ;  that,  as  we 
shall  show  hereafter,  there  has  never  been  but  one  political  society  in 
existence  as  an  organized  State  of  Tennessee,  from  the  day  of  its 
admission  to  the  Union  in  1796  to  the  present  time.  That  it  is  a  mere 
chimera  to  assert  that  one  State  of  Tennessee  conquered  by  force  of 
arms  another  State  of  Tennessee,  and  imposed  laws  upon  it ;  and, 
finally,  that  the  logical  legerdemain  by  which  the  State  goes  into  rebel- 
lion, and  makes,  while  thus  situated,  contracts  for  the  support  of  the 
government  in  its  ordinary  and  usual  functions,  which  are  necessary 
to  the  existence  of  social  life,  and  then,  by  reason  of  being  conquered, 
repudiates  these  contracts,  is  as  hard  to  understand  as  similar  physical 
performances  on  the  stage. 

2.  The  second  proposition  is  a  modification  of  this,  and  deserves 
more  serious  attention.  It  is,  as  we  understand  it,  that  each  of  the 
eleven  States  Avho  passed  ordinances  of  secession  and  joined  the  so- 


30  STATES.  [part  I. 

called  Confederate  States  so  far  succeeded  iu  their  attempt  to  separate 
themselves  from  the  Federal  government,  that  during  the  period  in 
which  the  rebellion  maintained  its  organization  those  States  were  in 
fact  no  longer  a  part  of  the  Union,  or,  if  so,  the  individual  States,  by 
reason  of  their  rebellious  attitude,  were  mere  usurping  powers,  all  of 
whose  acts  of  legislation  or  administration  are  void,  except  as  they  are 
ratified  by  positive  laws  enacted  since  the  restoration,  or  are  recognized 
as  valid  on  the  principles  of  comity  or  sufferance. 

We  cannot  agree  to  this  doctrine.  It  is  opposed  by  the  inherent 
powers  which  attach  to  every  organized  political  society  possessed  of 
the  right  of  self-government  ;  it  is  opposed  to  the  recognized  principles 
of  public  international  law  ;  and  it  is  opposed  to  the  well-considered 
decisions  of  this  court. 

''  iSTations  or  States,"  says  Vattel,  "  are  bodies  politic,  societies  of 
men  united  together  for  the  promotion  of  their  mutual  safety  and 
advantage  by  the  joint  efforts  of  their  combined  strength.  Such  a 
society  has  her  affairs  and  her  interests.  She  deliberates  and  takes 
resolutions  in  common,  thus  becoming  a  moral  person  who  possesses 
an  understanding  and  a  will  peculiar  to  herself,  and  is  susceptible  of 
obligations  and  rights,"     Law  of  Nations,  sect.  1. 

Cicero  and  subsequent  public  jurists  define  a  State  to  be  a  body 
political  or  society  of  men  united  together  for  the  purpose  of  pro- 
moting their  mutual  safety  and  advantage  by  their  combined  strength,' 
Wheaton,  International  Law,  sect.  17.  Such  a  body  or  society,  when 
once  organized  as  a  State  by  an  established  government,  must  remain 
so  until  it  is  destroyed.  This  may  be  done  by  disintegration  of  its 
parts,  by  its  absorption  into  and  identification  with  some  other  State 
or  nation,  or  by  the  absolute  and  total  dissolution  of  the  ties  which 
bind  the  society  together.  We  know  of  no  other  way  in  which  it  can 
cease  to  be  a  State,  No  change  of  its  internal  polity,  no  modification 
of  its  organization  or  system  of  government,  nor  any  change  in  its 
external  relations  short  of  entire  absorption  in  another  State,  can 
deprive  it  of  existence  or  destroy  its  identity.     Id.,  sect,  22, 

Let  us  illustrate  this  by  two  remarkable  periods  in  the  history  of 
England  and  France, 

After  the  revolution  in  England,  which  dethroned  and  decapitated 
Charles  I.,  and  installed  Cromwell  as  supreme,  whom  his  successors 
called  a  usurper;  after  the  name  of  the  government  was  changed  from 
the  Kingdom  of  England  to  the  Commonwealth  of  England;  and  when, 
after  all  this,  the  son  of  the  beheaded  monarch  came  to  his  own,  treaties 
made  in  the  interregnum  were  held  valid, — the  judgments  of  the 
courts  were  respected,  and  the  obligations  assumed  by  the  government 
were  never  disputed. 


CHAP.  I.]  KEITH   V.    CLARK.  31 

So  of  France.  Her  bloody  revolution  which  came  near  dissolving 
the  bonds  of  society  itself,  her  revolutionary  directory,  her  consul,  her 
Emperor  Napoleon,  and  all  their  official  acts,  have  been  recognized 
by  the  nation,  by  the  other  nations  of  Europe,  and  by  the  legitimate 
monarchy  when  restored,  as  the  acts  of  France,  and  binding  on  her 
people. 

The  political  society  which  in  1796  became  a  State  of  the  Union,  by 
the  name  of  the  State  of  Tennessee,  is  the  same  which  is  now  repre- 
sented as  one  of  those  States  in  the  Congress  of  the  United  States. 
Not  only  is  it  the  same  body  politic  now,  but  it  has  always  been  the 
same.  There  has  been  perpetual  succession  and  perpetual  identity. 
There  has  from  that  time  always  been  a  State  of  Tennessee,  and  the 
same  State  of  Tennessee.  Its  executive,  its  legislative,  its  judicial 
departments  have  continued  without  interruption  and  in  regular  order. 
It  has  changed,  modified,  and  reconstructed  its  organic  law,  or  State 
Constitution,  more  than  once.  It  has  done  this  before  the  rebellion, 
during  the  rebellion,  and  since  the  rebellion.  And.  it  was  always  done 
by  the  collective  authority  and  in  the  name  of  the  same  body  of  people 
constituting  the  political  society  known  as  the  State  of  Tennessee. 

This  political  body  has  not  only  been  all  this  time  a  State,  and  the 
same  State,  but  it  has  always  been  one  of  the  United  States,  —  a  State 
of  the  Union.  Under  the  Constitution  of  the  United  States,  by  virtue 
of  which  Tennessee  was  born  into  the  family  of  States,  she  had  no  law- 
ful power  to  depart  from  that  Union.  The  effort  which  she  made  to 
do  so,  if  it  had  been  successful,  would  have  been  so  in  spite  of  the 
Constitution,  by  reason  of  that  force  which  in  many  other  instances 
establishes  for  itself  a  status,  which  must  be  recognized  as  a  fact, 
without  reference  to  any  question  of  right,  and  which  in  this  case  would 
have  been,  to  the  extent  of  its  success,  a  destruction  of  that  Constitu- 
tion. Failing  to  do  this,  the  State  remained  a  State  of  the  Union. 
She  never  escaped  the  obligations  of  that  Constitution,  though  for  a 
while  she  may  have  evaded  their  enforcement. 

In  Texas  v.  White  (7  Wall.  700),  the  first  and  important  question 
was,  whether  Texas  was  then  one  of  the  United  States,  and  as  such 
capable  of  sustaining  an  original  suit  in  this  court  by  reason  of  her 
being  such  State.  And  this  was  at  a  time  when  Congress  had  not 
permitted  her,  after  the  rebellion,  to  have  representatives  in  either 
house  of  that  body. 

Mr.  Chief  Justice  Chase,  in  delivering  the  judgment  of  the  court  on 
this  question,  says  :  "  The  ordinance  of  secession,  adopted  by  the  con- 
vention and  ratified  by  a  majority  of  the  citizens  of  Texas,  and  all  the 
acts  of  her  legislature  intended  to  give  effect  to  that  ordinance,  were 
absolutely  null.     They  were  utterly  without  operation  in  law.     The 


32  STATES.  [PAKT  I. 

obligations  of  the  State,  as  a  member  of  the  Uiiion,  and  of  every  citizen 
of  the  State,  as  a  citizen  of  the  United  States,  remained  perfect  and 
unimpaired.  It  certainly  follows  that  the  State  did  not  cease  to  be 
a  State,  nor  her  citizens  to  be  citizens,  of  the  Union.  If  this  were 
otherwise,  the  State  must  have  become  foreign,  and  her  citizens  for- 
eigners. The  war  must  have  ceased  to  be  a  war  for  the  suppression 
of  rebellion,  and  must  have  become  a  war  for  conquest  and  subjuga- 
tion. Our  conclusion,  therefore,  is,  that  Texas  continued  to  be  a  State, 
and  a  State  of  the  Union,  notwithstanding  the  transactions  to  which 
we  have  referred." 

In  White  v.  Hart  (13  id,  646),  Mr.  Justice  Swayne,  after  a  full  con- 
sideration of  the  subject,  states  the  result  in  this  forcible  language  : 
"At  no  time  were  the  rebellious  States  out  of  the  pale  of  the  Union. 
*  *  *  Their  constitutional  duties  and  obligations  were  unaffected,  and 
remained  the  same."  And  he  shows  by  reference  to  the  formula  used' 
in  the  several  reconstruction  acts,  as  compared  with  those  for  the 
original  admission  of  new  States  into  the  Union,  that  in  regard  to  the 
States  in  rebellion  there  was  a  simple  recognition  of  their  restored 
right  to  representation  in  Congress,  and  no  readmission  into  the  Union. 

These  cases,  and  especially  that  of  Texas  v.  TVhite,  have  been  re- 
peatedly cited  in  this  court  with  approval,  and  the  doctrine  they  assert 
must  be  considered  as  established  in  this  forum  at  least. 

If  the  State  of  Tennessee  has  through  all  these  transactions  been 
the  same  State,  and  has  been  also  a  State  of  the  Union,  and  subject  to 
the  obligations  of  the  Constitution  of  the  Union,  it  would  seem  to 
follow  that  the  contract  which  she  made  in  1838  to  take  for  her  taxes 
all  the  issues  of  the  bank  of  her  own  creation,  and  of  which  she  was 
sole  stockholder  and  owner,  was  a  contract  wliich  bound  her  during 
the  rebellion  and  which  the  Constitution  protected  then  and  now,  as 
well  as  before.  Mr.  Wheaton  says:  "As  to  public  debts,  —  whether 
due  to  or  from  the  State,  —  a  mere  change  in  the  form  of  the  govern- 
ment, or  in  the  person  of  the  ruler,  does  not  affect  their  obligation. 
The  essential  power  of  the  State,  that  which  constitutes  it  an  inde- 
pendent community,  remains  the  same :  its  accidental  form  only  is 
changed.  The  debts  being  contracted  in  the  name  of  the  State,  by  its 
authorized  agents,  for  its  public  use,  the  nation  continues  liable  for 
them,  notwithstanding  the  change  in  its  internal  constitution.  The 
new  government  succeeds  to  the  fiscal  rights,  and  is  bound  to  fulfil  the 
fiscal  obligations,  of  the  former  government."  International  Law,  sect. 
30.  And  the  citations  which  he  gives  from  Grotius  and  Puffendorf 
sustain  him  fully. 

We  are  gratified  to  know  that  the  Supreme  Court  of  the  State  of 
Tennessee  has  twice  affirmed  the  principles  just  laid  down  in  reference 


CHAP.  1.]  KEITH    V.    CLARK.  33 

to  the  class  of  bank-notes  now  in  question.  In  a  suit  brought  by  the 
State  of  Tennessee  against  this  very  bank  of  Tennessee,  to  wind  up 
its  affairs  and  distribute  its  assets,  that  court,  in  April,  1875,  decreed, 
among  other  things,  "  that  the  acts  by  which  it  was  attempted  to 
declare  the  State  independent,  and  to  dissolve  her  connection  with  the 
Union,  had  no  effect  in  changing  the  character  of  the  bank,  but  that 
it  had  the  same  powers,  after  as  before  those  acts,  to  carry  on  a  legiti- 
mate business,  and  that  the  receiving  of  deposits  was  a  part  of  such 
legitimate  business."  "  That  the  notes  of  the  bank  issued  since  May 
6,  1861,  held  by  Atchison  and  Duncan,  and  set  out  in  their  answer,  are 
legal  and  subsisting  debts  of  the  bank,  entitled  to  payment  at  their 
face  value,  and  to  the  same  priority  of  payment  out  of  the  assets  of 
the  bank  as  the  notes  issued  before  May  6,  1861." 

At  a  further  hearing  of  the  same  case,  in  January,  1877,  that  court 
reaffirmed  the  same  doctrine,  and  also  held  that  the  notes  were  not 
subject  to  the  Statute  of  Limitations,  and  were  not  bound  by  it.  State 
of  Tennessee  v.  The  Bank  of  Te7inessee,  not  reported.  This  decision 
was  in  direct  conflict  with  schedule  6  of  the  constitutional  amendment 
of  1865,  which  declared  all  issues  of  the  bank  after  INFay  6,  1861,  void, 
and  it  necessarily  held  that  the  schedule  was  itself  void  as  a  violation 
of  the  Federal  Constitution. 

3.  Tlie  third  i^roposition  on  which  the  judgment  of  the  courts  of 
Tennessee  is  supported  is,  that  the  notes  on  which  the  action  is  brought 
were  issued  in  aid  of  the  rebellion,  to  support  the  insurrection  against 
the  laAvful  authority  of  the  United  States,  and  are  therefore  void  for 
all  purposes. 

The  principle  stated  in  this  proposition,  if  the  facts  of  the  case  come 
within  it,  is  one  which  has  repeatedly  been  discussed  by  this  court. 
The  decisions  establish  the  doctrine  that  no  promise  or  contract,  the 
consideration  of  which  was  something  done  or  to  be  done  by  the 
promisee,  the  purpose  of  which  was  to  aid  the  war  of  the  rebellion 
or  give  aid  and  comfort  to  the  enemies  of  the  United  States  in  the 
prosecution  of  that  war,  is  a  valid  promise  or  contract,  by  reason  of 
the  turpitude  of  its  consideration. 

In  Texas  v.  White  (supra),  the  suit  was  for  the  recovery  of  certain 
bonds  of  the  United  States  which,  previously  to  the  war,  had  been 
issued  and  delivered  to  the  State  of  Texas.  During  the  rebellion  the 
legislature  of  that  State  had  placed  these  bonds  in  the  hands  of  a 
military  commission,  and  they  were  delivered  by  that  committee  to 
White  and  Childs,  to  pay  for  supplies  to  aid  the  military  operations 
against  the  government.  This  court  held  that  while  the  State  was 
still  a  State  of  the  Union,  and  her  acts  of  ordinary  legislation  were 
valid,  it  was  otherwise  in  regard  to  this  transaction.     As  this  is  the 

3 


34  STATES.  [part  I. 

earliest  assertion  of  the  doctrine  in  this  court,  and  this  branch  of  the 
opinion  received  the  assent  of  all  the  members  of  the  court  but  one, 
and  has  been  repeatedly  cited  since  with  approval,  we  reproduce  a 
single  sentence  from  it :  '•  It  may  be  said,"  says  the  court,  "  perhaps 
with  sufficient  accuracy,  that  acts  necessary  to  peace  and  good  order 
among  citizens,  such,  for  example,  as  acts  sanctioning  and  protecting 
marriage  and  the  domestic  relations,  governing  the  course  of  descents, 
regulating  the  conveyance  and  transfer  of  property,  personal  and  real, 
and  providing  remedies  for  injuries  to  person  and  estate,  and  other 
similar  acts  which  would  be  valid  if  emanating  from  a  lawful  govern- 
ment, must  be  regarded  in  general  as  valid  when  proceeding  from  an 
actual  though  unlawful  government ;  and  that  acts  in  furtherance  or 
support  of  rebellion  against  the  United  States,  or  intended  to  defeat 
the  just  rights  of  citizens,  and  other  acts  of  like  nature,  must,  in 
general,  be  regarded  as  invalid." 

In  Hanauer  v.  Doane  (12  Wall.  342),  it  was  held  that  duebills, 
given  in  purchase  of  supplies  by  a  purchasing  agent  of  the  Confederate 
States,  were  void,  though  in  the  hands  of  a  third  party  ;  and  in  sup- 
port of  the  judgment  Mr.  Justice  Bradley  said  :  "  We  have  already 
decided,  in  the  case  of  Texas  v.  White,  that  a  contract  made  in  aid  of 
the  late  rebellion,  or  in  furtherance  and  support  thereof,  is  void.  The 
same  doctrine  is  laid  down  in  most  of  the  circuits,  and  in  many  of  the 
State  courts,  and  must  be  regarded  as  the  settled  law  of  the  land." 

The  latest  expression  of  the  court  on  the  subject  was  by  Mr.  Justice 
Field,  without  dissent,  in  Williams  v.  Brufftj  (96  U.  S.  176),  in  which 
the  whole  doctrine  is  thus  tersely  stated  :  "  While  thus  holding  that 
there  was  no  validity  in  any  legislation  of  the  Confederate  States 
which  this  court  can  recognize,  it  is  proper  to  observe,  that  the  legis- 
lation of  these  States  stands  on  very  different  grounds.  The  same 
general  form  of  government,  the  same  general  laws  for  the  adminis- 
tration of  justice  and  the  protection  of  private  rights,  which  had 
existed  in  the  State  prior  to  the  rebellion,  remained  during  its  con- 
tinuance and  afterwards.  As  far  as  the  acts  of  the  States  did  not 
impair,  or  tend  to  impair,  the  supremacy  of  the  national  authority,  or 
the  just  rights  of  the  citizens  under  the  Constitution,  they  are,  in 
general,  to  be  treated  as  valid  and  binding."  See  Horn  v.  Lockliart 
et  al,  17  Wall.  570  ;   Sprott  v.  United  States,  20  id.  459. 

There  is,  however,  in  the  case  before  us  nothing  to  warrant  the  con- 
clusion that  these  notes  were  issued  for  the  purpose  of  aiding  the 
rebellion,  or  in  violation  of  the  laws  or  the  Constitution  of  the  United 
States.  There  is  no  plea  of  that  kind  in  the  record.  No  such  ques- 
tion was  submitted  to  the  jury  which  tried  the  case.  The  sole  matter 
stated  in  defence,  either  by  facts  found  in  the  bill  of  exceptions,  or  in 


CHAP.  I.]  KEITH    V.    CLARK.  35 

the  decree  of  the  court,  is  that  the  bills  were  issued  after  May  G,  lSr»l, 
while  the  State  was  in  insurrection,  and  therefore  come  within  the 
amended  Constitution  of  1865,  declaring  them  void.  The  provision  of 
the  State  Constitution  does  not  go  upon  the  ground  that  the  State 
bonds  and  bank-notes,  which  it  declared  to  be  invalid,  were  issued  in 
aid  of  the  rebellion,  but  that  they  were  issued  by  a  usurping  govern- 
ment, —  a  reason  which  we  have  already  demonstrated  to  be  unsound. 
Not  only  is  there  nothing  in  the  Constitution  or  laws  of  Tennessee  to 
prove  that  these  notes  were  issued  in  support  of  the  rebellion,  but 
there  is  nothing  known  to  us  in  public  history  which  leads  to  this 
conclusion.  The  opinion  of  the  Supreme  Court,  which  we  have  already 
cited,  states  that  the  bank  was  engaged  in  a  legitimate  business  at 
this  time,  receiving  deposits,  and  otherwise  performing  the  functions 
of  a  bank;  and  though,  as  is  abundantly  evident,  willing  enough  to 
repudiate  these  notes  as  receivable  for  taxes,  that  court  held  them  to 
be  valid  issues  of  the  bank,  in  the  teeth  of  the  ordinance  declaring 
them  void. 

It  is  said,  however,  that  considering  the  revolutionary  character  of 
the  State  government  at  that  time,  we  must  presume  that  these  notes 
were  issued  to  support  the  rebellion. 

But  while  we  have  the  Supreme  Court  of  Tennessee  holding  that  the 
bank  during  this  time  was  engaged  in  a  legitimate  banking  business, 
we  have  no  evidence  whatever  that  these  notes  were  issued  under  any 
new  law  of  the  rebel  State  government,  or  by  any  interference  of  its 
officers,  or  that  they  were  in  any  manner  used  to  support  the  State 
government.  If  this  were  so,  it  would  still  remain  that  the  State  gov- 
ernment was  necessary  to  the  good  order  of  society,  and  that  in  its 
proper  functions  it  was  right  that  it  should  be  supported. 

We  cannot  infer,  then,  that  these  notes  were  issued  in  violation  of 
any  Federal  authority. 

On  the  other  hand,  if  the  fact  be  so,  nothing  can  be  easier  than  to 
plead  it  and  prove  it.  Whenever  such  a  plea  is  presented,  we  can,  if 
it  comes  to  us,  pass  intelligently  on  its  validity.  If  issue  is  taken, 
the  facts  can  be  embodied  in  a  bill  of  exceptions  or  some  other  form, 
and  we  can  say  whether  those  facts  render  the  contract  void.  To 
undertake  to  assume  the  facts  which  are  necessary  to  their  invalidity 
on  this  record  is  to  give  to  conjecture  the  place  of  proof,  and  to  rest  a 
judgment  of  the  utmost  importance  on  the  existence  of  facts  not  found 
in  the  record,  nor  proved  by  any  evidence  of  which  this  court  can 
take  judicial  notice.  We  shall,  when  the  matter  is  presented  properly 
to  us,  be  free  to  determine,  on  all  the  considerations  applicable 
to  the  case,  whether  the  notes  that  may  be  then  in  controversy  are 
protected  by  the  provision  of  the  Constitution  or  not.     And  that  is 


36  STATES.  [part  I. 

tlie  only  question  of  which,  in  a  case  like  the  present,  we  would  have 
jurisdiction. 

The  judgment  of  the  Supreme  Court  of  Tennessee  will,  therefore, 
be  reversed,  and  the  case  reu:ianded  to  that  court  for  further  proceed- 
ings in  accordance  with  this  opinion  ;  and  it  is  So  ordered.^ 

Waitp:,  C.  J.,  and  Bradley  and  Haklan,  JJ.,  dissented. 

1  Re-affirmed  in  Clark  v.  Keith,  1882,  1C6  U.  S.  464. 

Some  furtlicr  judicial  definitions  of  States  or  nations  follow:  "A  distinction  was 
taken  at  the  bar  between  a  State  and  the  people  of  the  State.  It  is  a  distinction 
I  am  not  capable  of  comprehending.  By  a  State  forming  a  republic  (speaking  of  it 
as  a  moral  person)  I  do  not  mean  the  Legislature  of  the  State,  the  E.xecutive  of  tlie 
State,  or  the  Judiciary,  but  all  the  citizens  which  compose  that  State,  and  are,  if  I 
may  so  express  myself,  integral  prirts  of  it ;  all  togetlier  forming  a  body  politic.  The 
great  distinction  between  monarchies  and  republics  (at  least  our  republics)  in  general 
is,  that  in  the  former  the  monarch  is  considered  as  the  sovereign,  and  each  individual 
of  his  nation  as  subject  to  him,  though  in  some  countries  with  many  important  special 
limitations  :  This,  I  say,  is  generally  the  case,  for  it  has  not  been  so  universally.  But 
in  a  republic,  all  the  citizens,  as  such,  are  equal,  and  no  citizen  can  rightfully  exercise 
any  authority  over  another  but  in  A'irtue  of  a  power  constitutionally  given  by  the 
whole  community,  and  such  authority,  when  exercised,  is  in  effect  an  act  of  the  whole 
community,  which  forms  such  body  politic.  In  such  governments,  therefore,  the 
sovereignty  resides  in  the  great  body  of  the  people,  but  it  resides  in  them  not  as  so 
many  distinct  individuals,  but  in  tiieir  politic  capacity  only,"  per  Iredell,  J.,  in 
Penhallow  et  af.  v.  Doane's  Admiiiistrators,  1795,  3  Dall.  54,  t)3. 

"  The  terms  state  and  nation  are  used  in  the  law  of  nations,  as  well  as  in  common 
parlance,  as  importing  the  same  thing,  and  imply  a  body  of  men,  united  togetlier,  to 
procure  their  mutual  safety  and  advantage  by  means  of  their  union.  Such  a  society 
has  its  affairs  and  interests  to  manage ;  it  deliberates,  and  takes  resolutions  in  com- 
mon, and  thus  becomes  a  moral  person,  having  an  understanding  and  a  will  peculiar 
to  itself,  and  is  susceptible  of  obligations  and  laws.  Vattel,  1.  Nations  being  com- 
posed of  men  naturally  free  and  independent,  and  who,  before  the  establishment  of 
civil  societies,  live  together  in  the  state  of  nature,  nations  or  sovereign  states,  are  to 
be  considered  as  so  many  free  persons,  living  together  in  a  state  of  nature.  Vattel,  2, 
§  4.  Every  nation  that  governs  itself,  under  what  form  soever,  without  any  depend- 
ence on  a  foreign  power,  is  a  sovereign  state.  Its  rights  are  naturally  the  same  as 
those  of  any  other  state.  Such  are  moral  persons  who  live  together  in  a  natural  so- 
ciety, under  the  law  of  nations.  It  is  sufficient  if  it  be  really  sovereign  and  inde- 
pendent :  that  is,  it  must  govern  itself  by  its  own  authority  and  laws.  We  ought, 
therefore,  to  reckon  in  the  number  of  sovereigns  those  states  that  have  bound  tliem- 
selves  to  another  more  powerful,  although  by  an  unequal  alliance.  The  conditions 
of  these  unequal  alliances  may  be  infinitely  varied;  but  whatever  they  are,  provided 
the  inferior  ally  reserves  to  itself  the  sovereignty  or  the  right  to  govern  its  own  body, 
it  ought  to  be  considered  an  independent  state.  Ccmsequently,  a  weak  state,  that,  in 
order  to  provide  for  its  safety,  places  itself  under  the  protection  of  a  more  powerful 
one,  without  stripping  itself  of  the  right  of  government  and  sovereignty,  does  not 
cease  on  this  account  to  be  placed  among  the  sovereigns  who  acknowledge  no  other 
power.  Tributary  and  feudatory  states  do  not  thereby  cease  to  be  sovereign  and  in- 
dependent states,  80  long  as  self-government,  and  sovereign  and  independent  authority 


CHAP.  I.]  THOMPSON    V.    POWLES.  37 

(b)  Recognition  of  the  Existence  of  a  State. 

THOMPSON  V.   POWLES. 

Chancery,  1828. 

(2  Simons,  194.) 

The  contract  in  this  case  was  for  the  purchase  of  Guatemala  bonds, 
which  were  in  the  hands  of  the  London  agents  of  that  government. 

The  plaintiff  was  led  into  the  venture  hy  the  fraud  and  misrepre- 
sentations of  the  agents  and  their  partners  in  guilt,  and  now  files  a 
bill  in  Chancery  for  the  recovery  of  his  money,  the  Guatemalan  gov- 
ernment having  repudiated  its  agents  and  all  their  engagements 
because  of  these  frauds. 

The  following  is  an  extract  from  the  judgment  of  Vice-Chancellor 
Shadwell:  — 

'"But  there  is  this  further  consideration;  that  this  is  represented  to 
have  been  a  contract,  by  the  plaintiff,  to  purchase  the  obligations  of 
persons  who  were  stated  to  be  the  government  of  the  federal  repub- 
lic of  Central  America. 

"I  confess  that,  after  all  I  have  heard  fall  from  the  mouth  of  Lord 
Eldon,  on  the  subject  of  persons  representing  themselves  to  be  gov- 
ernments of  foreign  countries,  which  this  country  had  not  acknowl- 
edged to  be  governments,  and  which  the  courts  cannot  acknowledge 
them  to  be,  till  the  government  of  the  country  has  recognized  them 

is  left  in  tlie  administration  of  the  state.     Vattel,  c.  1,  pp.  16,  17."     (Tliorapson,  J.,  in 
The  Cherukee.  Nation  v.  The  State  of  Georgia,  1831,  5  Pet.  1,  52,  53.) 

"  The  argument  rests  entirely  upon  an  assumption,  which,  it  appears  to  us,  is  cer- 
tainly groundless  ;  the  assumption  that  personality  cannot  be  truly  predicated  of  a 
republic.  A  republic,  acknowledged  as  such  by  our  own  Government,  is  an  indepen- 
dent sovereign  power  ;  in  other  words,  a  state,  just  as  certainly,  and  in  the  same  sense 
as  a  monarchy,  limited  or  absolute ;  and  every  state  is  a  person,  an  artificial  person 
in  a  more  extensive  and  far  higher  sense  than  an  ordinary  corporation.  A  state, 
whatever  may  be  the  form  of  its  internal  government,  and  by  whatever  appellation  it 
may  be  known,  is,  in  the  language  of  Vattel,  '  a  moral  person,  having  an  understand- 
ing and  a  will,  capable  of  possessing  and  acquiring  rights,  and  of  contracting  and  ful- 
filling obligations.'  (Vattel  Droit  des  Gens,  liv.  1,  c.  1,  §  4;  vide,  also,  Wheaton's 
Elem.  of  Interna.  Law,  vol.  1,  c.  2,  §§  1  &  2.) 

'■  The  definition  given  by  other  writers  on  the  law  of  nations  is  substantially  the 
same,  and,  indeed,  it  is  upon  the  truth  of  this  definition  that  the  wiiole  science  of  in- 
ternational law  is  founded  —  since  it  is  evident,  that  it  is  only  upon  persons,  having  an 
understanding  and  a  will,  that  law  can  operate.  Every  valid  law  implies  the  duty  of 
obedience,  and  it  is  only  by  persons  that  obedience  can  be  rendered.  (Duer,  J.,  in 
The  Republic  of  Mexico  v.  De  Arrangoiz,  1856,  5  Duer,  (534,  GoG,  637).—  Ed. 


118482 


88  STATES.  [PAKT  I. 

to  be  so,  it  does  appear  to  me  that  this  is  a  contract  entered  into  by 
the  plaintiff  for  the  purpose  of  purchasing  that  which,  by  the  law  of 
the  land,  he  could  not  purchase.  I  think  that  the  contract,  being  to 
purchase  securities  from  these  persons,  who,  as  the  plaintiff  says, 
were  the  government  of  Guatemala,  cannot  be  considered  as  being  a 
contract  which  this  court  ought  to  sanction.  The  whole  case  being 
founded  on  that,  I  do  not  think  that  I  could  give  relief  to  the  party, 
who  builds  his  case  for  relief  entirel}^  on  a  transaction  originating  in 
such  a  manner;  and  it  appears  to  me  that,  on  that  ground,  I  must 
allow  this  demurrer."  ^ 


JONES   V.   UNITED   STATES. 
Supreme  Court  op  the  United  States. 

(137  United  States,  202.) 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court.^ 
This  was  an  indictment,  found  in  the  District  Court  of  the  United 
States  for  the  District  of  Maryland,  and  remitted  to  the  Circuit  Court 
under  Kev.  Stat.  §  1039,  alleging  that  Henry  Jones,  late  of  that 
district,  on  Sept.  14,  1889,  "  at  Navassa  Island,  a  place  which  then  and 
there  was  under  the  sole  and  exclusive  jurisdiction  of  the  United 
States,  and  out  of  the  jurisdiction  of  any  particular  State  or  district  of 
the  United  States,  the  same  being,  at  the  time  of  the  committing  of 

1  Tlie  principal  cases  referred  to  follow  : 

The  City  of  Berne  v.  Bank  of  England,  1804,  9  Ves.  347,  in  which  "  Tiie  Lord  Ciian- 
cellor  would  not  make  the  order  ;  observing,  that  he  was  much  struck  with  the  objec- 
tion ;  and  it  was  extremely  difBcult  to  say,  a  judicial  court  can  take  notice  of  a 
government  never  authorized  by  the  government  of  the  country  in  wiiich  that  court 
sits;  and,  whether  the  foreign  government  is  recognized,  or  not,  is  a  matter  of  public 
notoriety." 

In  Jojies  V.  Garcia  Del  Rio,  1823,  Tur.  &  Rus.  297,  the  Lord  Chancellor  sug- 
gested, but  did  not  decide,  tliat  Peru  could  not  be  recognized  by  the  courts  if  its 
independence  had  not  been  recognized  by  tiie  British  Government. 

In  Taylor  v.  Barclaij,  1828,  2  Sim.  213,  before  Vice-Chancellor  Shadwell,  the  facts, 
the  parties  (except  as  to  the  plaintiff)  and  judgment  were  the  same.  Important  ex- 
tracts are  made  from  this  case  in  Jones  v.  U.  S.,  infra.  If  a  foreign  government  has 
recognized  the  existence  of  a  state  or  de  facto  government  its  subjects  and  citizens  are 
bound  by  such  act  of  recognition,  Rejmblic  of  Peru  v.  Dreyfus,  1888,  L.  R.,  38  Ch.  D. 
348,  and  if  the  de  facto  government  thus  recognized  is  displaced  by  the  de  jure  govern- 
ment, an  act  of  the  latter  repealing  and  declaring  void  tiie  legislative  and  executive 
acts  of  its  de  facto  predecessor  will  not  be  binding  upon  the  foreign  state  that  had 
recognized  the  de  facto  government,  Rejntblic  of  Peru  v.  The  Peruvian  Guano  Co.,  1886, 
L.  R..  36  Ch.  D.  489.  —  Ed. 

'■^  Part  of  the  opinion  is  omitted.  —  Ed. 


CHAP,  I.]  JONES    V.    UNITED    STATES.  39 

the  offences  in  the  manner  and  form  as  hereinafter  stated  by  the 
persons  hereinafter  named,  an  island  situated  in  the  Caribbean  Sga, 
and  named  Navassa  Island,  and  which  was  then  and  there  recognized 
and  considered  by  the  United  States  as  containing  a  deposit  of  guano, 
within  the  meaning  and  terms  of  the  laws  of  the  United  States  relat- 
ing to  such  islands,  and  which  was  then  and  there  recognized  and-cx)n- 
sidered  by_the  United  States  as  appertaining  to  the~United  States^ and 
which  was~aIso't1ien  and  there  in  the  possession  of  the  United  States, 
under  the  iaws"T)fT5e"U^ited  States  then  and  there  in  force  relating 
to  such  islands,"  murdered^ohe~Thomas  X.  Foster,  by  giving  him  three 
mortal  blows  with  an  axe,  of  which  he  there  died  on  the  same  day ; 
and  that  other  persons  named  aided  and  abetted  in  the  murder.  The 
indictment,  after  charging  the  murder  in  usual  form,  alleged  that 
the  District  of  Maryland  was  the  District  of  the  United  States  into 
which  the  defendant  was  afterwards  first  brought  from  the  Island  of 
Navassa. 

[Act  of  Congress  of  Aug.  18,  1856,  c.  164,  11  Stat.  1191,  since  reen- 
acted  in  Title  72,  §§  5570-5578  of  Revised  Statutes  and  various  docu- 
ments showing  that  the  United  States  claimed  jurisdiction  over  the 
island,  are  set  forth,  after  which  the  opinion  proceeds  as  follows  : — ] 

By  the  Constitution  of  the  United  States,  while  a  crime  committed 
within  any  State  must  be  tried  in  that  State  and  in  a  district  previously 
ascertained  by  law,  yet  a  crime  not  committed  within  any  State  of  the 
Union  may  be  tried  at  such  place  as  Congress  may  by  law  have 
directed.  Constitution,  art.  3,  §  2 ;  Amendments,  art.  6 ;  United 
States  V.  Dawson,  15  How.  467,  488.  Congress  has  directed  that  "the 
trial  of  all  offences  committed  upon  the  high  seas  or  elsewhere,  out  of 
the  jurisdiction  of  any  particular  State  or  district,  shall  be  in  the 
district  where  the  offender  is  found,  or  into  which  he  is  first  brought." 
Rev.  Stat.  §  730.  And  Congress  has  awarded  the  punishment  of  death 
to  the  crime  of  murder,  whether  committed  upon  the  high  seas  or 
other  tide  waters  out  of  the  jurisdiction  of  any  particular  State,  or 
*■'  within  any  fort,  arsenal,  dock-yard,  magazine  or  in  any  other  place 
or  district  of  country  under  the  exclusive  jurisdiction  of  the  United 
States."  Rev.  Stat.  §  5339.  Both  these  acts  of  Congress  clearly 
include  murder  committed  on  any  land  within  the  exclusive  juris- 
diction of  the  United  States  and  not  within  any  judicial  district,  as 
well  as  murder  committed  on  the  high  seas.  Ex  parte  Bolhaan, 
4  Cranch,  75,  136 ;  United  States  v.  Bevans,  3  Wheat.  336,  390,  391 ; 
United  States  v.  Arwo,  19  Wall.  486. 

By  the  law  of  nations,  recognized  by  all  civilized  states,  dominion 
of  new  territory  may  be  acquired  by  discovery  and  occupation,  as  v/ell 
as  by  cession  or  conquest ;  and  when  citizens  or  -subjects  of  one  nation, 


f^J 


40  STATES.  [part  I. 

in  its  name,  and  by  its  authority  or  with  its  assent,  take  and  hold 
actual,  continuous  and  useful  possession,  (although  only  for  the  pur- 
pose of  carrying  on  a  particular  business,  such  as  catching  and  curing 
fish,  or  working  mines),  of  territory  unoccupied  by  any  other  govern- 
ment or  its  citizens,  the  nation  to  which  they  belong  may  exercise 
such  jurisdiction  and  for  such  period  as  it  sees  fit  over  territory  so  ac- 
quired. This  principle  affords  ample  warrant  for  the  legislation  of 
Congress  concerning  guano  islands.  Vattel,  lib.  1,  c.  18 ;  Wheaton  on 
International  Law  (8th  ed. ),  §§  161,  165,  176,  note  104;  Halleck  on 
International  Law,  c.  6,  §§  7,  15;  1  Phillimore  on  International  Law 
(3d  ed.),  §§  227,  229,  2.30,  232,  212;  1  Calvo  Droit  International 
(4th  ed.),  §§  266,  277,  300;  Whiton  y.  Albany  Lis.  Co.,  109  Mass. 
24,  31. 

Wiio  is  the  sovereign,  de  jure  or  de  facto,  of  a  territory  is  not  a 
judicial,  but  a  political  question,  the  determination  of  which  by  the 
legislative  and  executive  departments  of  any  government'conclusively 
binds  the  judges,  as  well  as  all  other  officers,  citizens  and  subjects  of 
that  government.  This  principle  has  always  been  upheld  by  this 
court,  and  has  been  affirmed  under  a  great  variety  of  circumstances. 
Gelston  V.  Hoijt,  3  Wheat.  246,  324  ;  United  States  v.  Palmer,  3  Wheat. 
610 ;  The  Divina  Pastora,  4  Wheat.  52 ;  Foster  v.  Neilson,  2  Pet.  253, 
307,  309  ;  Keane  v.  McDonough,  8  Pet.  30S ;  Garcia  v.  Lee,  12  Pet. 
511,  520;  Williams  v.  Suffolk  Lis.  Co.,  13  Pet.  415;  United  States  v. 
Yorha,  1  Wall.  412,  423 ;  United  States  v.  L>/nde,  11  Wall.  632,  638. 
It  is  equally  well  settled  in  England.  The  Pelican,  Edw.  Adm.  appx. 
D;  ^  Tai/lor  v.  Barclay,  2  Sim.  213  ;  Empei'or  of  Austria  v.  Day,  3  DeGr., 
P.  &  J.  217,  221,  233  ;  Piejmhlic  of  Peru  v.  Peruvian  Guano  Co.,  36  Ch. 
D.  489,  497 ;  Repuhlic  of  Peru  v.  Dreyfus,  38  Ch.  D.  348,  356,  359. 

In  Williams  v.  Suffolk  Lns.  Co.,  in  an  action  on  a  policy  of  insur- 
ance, the  following  question  arose  in  the  Circuit  Court,  and  was 
brouglit  up  by  a  certificate  of  division  of  opinion  between  the  judges 
thereof : 

"  Whether,  inasmuch  as  the  American  government  has  insisted  and 
does  still  insist,  through  its  regular  executive  authority,  that  the  Falk- 
lands  Islands  do  not  constitute  any  part  of  the  dominions  within  the 
sovereignty  of  the  government  of  Buenos  Ayres,  and  that  the  seal 
fishery  at  tliose  islands  is  a  trade  free  and  lawful  to  the  citizens  of 
the  United  States,  and  beyond  the  competency  of  tlie  Buenos  Ayrean 
government  to  regulate,  prohibit  or  punish  ;  it  is  competent  for  the 

1  In  the  Pelican,  1809,  cited  in  the  text,  Sir  William  (Jriint  said  :  "It  always  belongs 
to  the  government  of  the  country  to  determine  in  wluit  relation  any  other  country 
stands  towards  it;  that  is  a  point  upon  which  courts  of  justice  canuot  decide." — Ed. 

. , ,,  i 


CHAP.  I.]  JONES   V.    UNITED    STATES.  41 

Circuit  Court  in  this  cause  to  inquire  into  and  ascertain  by  other 
evidence  the  title  of  said  government  of  Buenos  Ayres  to  the  sover- 
eignty of  the  said  Falkland  Islands,  and,  if  such  evidence  satisfies  the 
court,  to  decide  against  the  doctrines  and  claims  set  up  and  supported 
by  the  American  government  on  this  subject;  or  whether  the  action 
of  the  American  government  on  this  subject  is  binding  and  conclusive 
on  this  court  as  to  whom  the  sovereignty  of  those  islands  belongs." 
13  Pet.  417. 

This  court  held  that  the  action  of  the  executive  department  on  the 
question  to  whom  the  sovereignty  of  those  islands  belonged,  was  bind- 
ing and  conclusive  upon  the  courts  of  the  United  States,  saying:  "Can 
there  be  any  doubt  that  Avhen  the  executive  branch  of  the  government, 
which  is  charged  with  our  foreign  relations,  shall  in  its  correspondence 
with  a  foreign  nation  assume  a  fact  in  regard  to  the  sovereignty  of  any 
island  or  country,  it  is  conclusive  on  the  judicial  department  ?  And 
in  this  view  it  is  not  material  to  inquire,  nor  is  it  the  province  of  the 
court  to  determine,  whether  the  executive  be  right  or  wrong.  It  is 
enough  to  know,  that  in  the  exercise  of  his  constitutional  functions  he 
has  decided  the  question.  Having  done  this  under  the  responsibilities 
which  belong  to  him,  it  is  obligatory  on  the  people  and  government  of 
the  Union."  "In  the  present  case,  as  the  executive  in  his  message, 
and  in  his  correspondence  with  the  government  of  Buenos  Ayres,  has 
denied  the  jurisdiction  which  it  has  assumed  to  exercise  over  the 
Falkland  Islands  the  fact  must  be  taken  and  acted  on  by  this 
court  as  thus  asserted  and  maintained."     13  Pet.  420. 

All  courts  of  justice  are  bound  to  take  judicial  notice  of  the  terri- 
torial extent  of  the  jurisdiction  exercised  by  the  government  whose 
laws  they  administer,  or  of  its  recognition  or  denial  of  the  sovereignty 
of  a  foreign  power,  as  appearing  from  the  public  acts  of  the  legislature 
and  executive,  although  those  acts  are  not  formally  put  in  evidence, 
nor  in  accord  with  the  pleadings.  United  States  v.  Mepies,  9  How. 
127  ;  Keanett  v.  Chambers,  14  How.  38  ;  Hoyt  v.  EmseH,  111  U.  S.  401, 
404;  Coffee  v.  Grover,  123  U.  S.  1  ;  State  v.  Dimwell,  3  E.  I.  127; 
State  V.  Wagner,  61  Maine,  178 ;  Taylor  v.  Barclay,  and  Emperor  of 
Austria  v,  Daij,  above  cited  ;  1  Greenl.  Ev.  §  6. 

In  United  States  v.  Reynes,  upon  the  question  whether  a  Spanish 
grant  of  land  in  Louisiana  was  protected,  either  by  the  treaty  of 
retrocession  from  Spain  to  France,  or  by  the  treaty  of  Paris,  by  which 
the  Territory  of  Louisiana  was  ceded  to  the  United  States,  this  court 
held  :  "  The  treaties  above  mentioned,  the  public  acts  and  proclamations 
of  the  Spanish  and  French  governments,  and  those  of  their  publicly 
recognized  agents,  in  carrying  into  effect  those  treaties,  though  not 
made  exhibits  in  this  cause,  are  historical  and  notorious  facts,  of  which 


42  STATES.  [part  I. 

the  court  can  take  regular  judicial  notice,  and  reference  to  which  is 
implied  in  the  investigation  before  us."  9  How.  147,  148. 
"Sin  Kennett  v.  Chambers,  a  bill  to  compel  specific  performance  of  a 
contract  made  in  the  United  States  in  September,  1836,  by  which  a 
general  in  the  Texan  Army  agreed  to  convey  lands  in  Texas,  in  con- 
sideration of  money  paid  him  to  aid  in  raising  and  equipping  troops 
against  Mexico,  was  dismissed  on  demurrer,  because  the  independence 
of  Texas,  though  previously  declared  by  that  State,  had  not  then  been 
acknowledged  by  the  government  of  the  United  States;  and  the  court 
established  this  conclusion  by  referring  to  messages  of  the  President 
of  the  United  States  to  the  Senate,  a  letter  from  the  President  to  the 
Governor  of  Tennessee,  and  a  note  from  the  Secretary  of  State  to  the 
Mexican  ]\Iinister,  none  of  which  were  stated  in  the  record  before 
the  court.     14  How.  47,  48. 

So  in  Coffee  v.  Grover,  upon  writ  of  error  to  the  Supreme  Court  of 
Florida,  in  a  case  involving  a  title  to  land,  claimed  under  conflicting 
grants  from  the  State  of  Florida  and  the  State  of  Georgia,  and  depend- 
ing upon  a  disputed  boundary  between  those  States,  this  court 
ascertained  the  true  boundary  by  consulting  public  documents,  some 
of  which  had  not  been  given  in  evidence  at  the  trial,  nor  referred 
to  in  the  opinion  of  the  court  below.     123  U.  S.  11  et  seq. 

In  Taylor  v.  Barclay,  a  bill  in  equity,  based  on  an  agreement  which 
it  alleged  had  been  made  in  1825  by  agents  of  "the  government  of  the 
Federal  Republic  of  Central  America,  which  was  a  sovereign  and  inde- 
pendent state,  recognized  and  treated  as  such  by  His  Majesty  the  King 
of  these  Realms,"  was  dismissed  on  demurrer  by  Vice-Chancellor 
Shadwell,  who  said  :  "  I  have  had  communication  with  the  Foreign 
Office,  and  I  am  authorized  to  state  that  the  Federal  Republic  of 
Central  America  has  not  been  recognized  as  an  independent  government 
by  the  government  of  this  country."  Inasmuch  as  I  conceive  it  is  the 
duty  of  the  judge  in  every  court  to  take  notice  of  public  matters  which 
affect  the  government  of  this  country,  I  conceive  that,  notwithstanding 
there  is  this  averment  in  the  bill  I  am  bound  to  take  the  fact  as  it 
really  exists,  not  as  it  is  averred  to  be."  "Nothing  is  taken  to  be 
true,  except  that  which  is  properly  pleaded;  and  I  am  of  opinion  that, 
when  you  plead  that  which  is  historically  false,  and  which  the  judges 
are  bound  to  take  notice  of  as  being  false,  it  cannot  be  said  you 
have  properly  pleaded,  merely  because  it  is  averred,  in  plain  terms; 
and  that  I  must  take  it  just  as  if  there  was  no  such  averment  on 
the  record."     2  Sim.  220,  221,  223. 

That  case  is  in  harmony  with  decisions  made  in  the  time  of  Lord 
Coke,  and  in  which  he  took  part,  that  against  an  allegation  of  a  public 
act  of  Parliament,  of  which  the  judges  ought  to  take  notice,  the  other 


CHAP.  I.]  JONES   V.    UNITED    STATES.  43 

party  cannot  plead  7iul  tiel  record,  but,  if  the  act  be  misrecited,  ought 
to  demur  in  law  upon  it.  The  Prince's  Case,  8  Rep.  14a,  28a  ;  Woolseij's 
Case,  Godb.  178. 

In  the  ascert.iinment  of  any  facts  of  which  they  are  bound  to  take 
judicial  notice,  as  in  the  decision  of  matters  of  law  which  it  is  their 
office  to  know,  the  judges  may  refresh  their  memory  and  inform  their 
conscience  from  such  sources  as  they  deem  most  trustworthy.  Gresley 
Eq.  Ev.  pt.  3,  c.  1;  Fremont  v.  United  States,  17  How.  512,  557; 
Brown  v.  Fiper,  91  U.  S.  37,  42  ;  State  v.  Wagner,  61  Maine,  178. 
Upon  the  question  of  the  existence  of  a  public  statute,  or  of  the  date 
■when  it  took  effect,  they  may  consult  the  original  roll  or  other  official 
records.  Spring  v.  Eve,  2  Mod.  240  ;  1  Hale's  Hist.  Com.  Law  (5th  ed.) 
19-21 ;  Gardner  v.  Collector,  6  Wall.  419  ;  South  Ottawa  v.  Perkins,  94 
U.  S.  260,  267-269,  277 ;  Post  v.  Siq^ervisors,  105  U.  S.  667.  As  to 
international  affairs,  such  as  the  recognition  of  a  foreign  government, 
or  of  the  diplomatic  character  of  a  person  claiming  to  be  its  representa- 
tive, they  may  require  of  the  Foreign  Office  or  the  Department  of 
State.  Taylor  v.  Barclay,  above  quoted  ;  The  Charkieh,  L.  R.  4  Ad.  & 
Ec.  59,  74,  86 ;  Ex  parte  Hitz,  111  U.  S.  766:  In  re  Baiz,  135  U.  S.403. 

In  the  ease  at  bar,  the  indictment  alleges  that  the  Island  of  ISTavassa, 
on  which  the  murder  is  charged  to  have  been  committed,  was  at  the 
time  under  the  sole  and  exclusive  jurisdiction  of  the  United  States,  and 
out  of  the  jurisdiction  of  any  particular  State  or  district  of  the  United 
States,  and  recognized  and  considered  by  the  United  States  as  contain- 
ing a  deposit  of  guano  within  the  meaning  and  terms  of  the  laws  of 
the  United  States  relating  to  such  islands,  and  recognized  and  con- 
sidered by  the  United  States  as  appertaining  to  the  United  States  and 
in  the  possession  of  the  United  States  under  those  laws. 

These  allegations,  indeed,  if  inconsistent  with  facts  of  which  the 
court  is  bound  to  take  judicial  notice,  could  not  be  treated  as  con- 
clusively supporting  the  verdict  and  judgment.  But,  on  full  con- 
sideration of  the  matter,  we  are  of  opinion  that  those  facts  are  quite 
in  accord  with  the  allegations  of  the  indictment. 

The  power,  conferred  on  the  President  of  the  United  States  by 
section  1  of  the  act  of  Congress  of  1856,  to  determine  that  a  guano 
island  shall  be  considered  as  appertaining  to  the  United  States,  being 
a  strictly  executive  power,  affecting  foreign  relations,  and  the  manner 
in  which  his  determination  shall  be  made  known  not  having  been 
prescribed  by  statute,  there  can  be  no  doubt  that  it  may  be  declared 
through  the  Department  of  State,  whose  acts  in  this  regard  are  in  legal 
contemplation  the  acts  of  the  President.  Wolsey  v.  Chapman,  101 
U.  S.  755,  770;  Runkle  v.  United  States,  122  U.  S.  543,  557;  11 
Opinions  of  Attorneys-General,  397,  399. 


44  STATES.  [part  I. 

For  the  reasons  above  stated,  our  conclusion  is  that  the  Guano 
Islands  Act  of  Aug.  18,  1856,  c.  164,  reenacted  in  Title  72  of  the 
Revised  Statutes,  is  constitutional  and  valid  ;  that  the  Island  of 
Navassa  must  be  considered  as  appertaining  to  the  United  States ; 
that  the  Circuit  Court  of  the  United  States  for  the  District  of  Maryland 
had  jurisdiction  to  try  this  indictment  ;  and  that  there  is  no  error  in 
the  proceedings. 

Judgment  affirmed.^ 

1  In  the  case  of  Luther  v.  Borden,  1849,  7  How.  1,  it  was  lield  that  the  Constitution 
had  vested  tlie  power  of  recognizinsi  a  State  government  in  Congress  ;  that  it  was 
therefore  a  political  and  a  not  judicial  question;  that  the  President  was  vested  with 
this  power  by  act  of  Congress  and  that  his  exercise  of  it  in  this  case  was  within  the 
grant  of  tills  power.  See  Texas  v.  White,  1868,  7  Wall.  700,  and  Taj/Ior  and  Marshall 
V.  Beckham,  1899,  178  U.  S.  548. 

For  an  account  of  Dorr's  Rebellion,  with  which  the  leading  case  of  Luther  v.  Borden 
deals,  see  A.  M.  Mowry's  Dorr  War,  1901. 

On  the  relation  of  the  United  States  to  the  States  of  the  Union,  see,  generally, 
McCulluch  V.  Mart/land,  If-lO,  4  Wheat.  316;  Texas  v.  White,  siipi-a;  Lane  County  v. 
dre!/on,'l8m,  7  Wall.  71  ;  VarheWs  Case,  1871,  13  Wall.  397,  and  Ex  parte  Siebold,  1879. 
100  U.  S.  371. 

From  the  principal  case,  and  citations  both  in  the  text  and  notes  it  appears  con- 
clusively that  recognition  of  statehood,  foreign  and  American,  in  all  its  various  degrees, 
is  a  political,  not  a  judicial,  question,  and  that  tiie  court  derives  its  knowledge  of  such 
matters  from  the  political  department.  As  tiie  greater  includes  the  lesser,  recognition 
of  belligerency  and  insurrection  is  likewise  political  and  non-judicial.  (See  The  Three 
Friends,  1896,  16(j  U.  S.  1,  infra.) 

While,  therefore,  the  question  is  beyond  controversy,  the  following  remarkably 
clear  enunciation  of  the  doctrine  may  be  quoted  :  — 

"These  are  the  two  views  of  secession  on  which  the  public  men  of  the  country 
divide,  and  between  which  some  of  them  oscillate.  Which  shall  the  judicial  mind 
adopt  1  I  answer,  that  view,  if  it  can  be  ascertained,  which  the  political  departments  of 
the  Federal  Government  have  adopted.  Not  that  the  judiciary  is  ever,  upon  principle, 
to  surrender  its  independence  of  judgment  to  the  executive  and  legislative  depart- 
ments, but,  since  the  foreign  relations  of  the  Federal  Government  are  wholly  en- 
trusted to  tiie  President  and  Congress,  the  judiciary  must  acceiit  them,  just  as  they 
have  been  recognized  and  established  by  the  President  and  Congress.  It  is  onhj  from 
the  acts  and  declarations  of  these  departments  thative  can  know,  judicially,  what  governments 
exist,  and  what  rights  we  concede  to  them.  This  rule  of  decision  was  recognized  by  Ch.  J. 
Marshall,  in  United  States  v.  Palmer,  3  Wheat.  634,  and  in  Foster  v.  Neilson,  2  Peters, 
307,  and  was  very  distinctly  reasserted  by  Mr.  Justice  Grier,  in  tlie  Prize  Cases,  2 
Black,  070."     Fijield  v.  Ins.  Co.,  1864,  47  Penn.  State,  160,   172,  per  Woodward,  C.  J. 

It  is  a  fundamental  principle  of  constitutional  law  that  a  grant  of  power  carries 
with  it  the  right  of  discretion  in  its  exercise  {McCidloch  v.  Maryland,  1819,  4  AVlieat. 
316) ;  it  therefore  follows  that  the  wisdom  or  expediency  of  the  foreign  policy  of  our 
government  is  not  subject  to  examination  in  a  court  of  justice.  Tiie  following  passage 
shows  that  the  policy  of  our  government  in  the  matter  of  recognition  has  been  judi- 
cious if  nonjudicial  : 

"Tiiere  is  a  stage  in  suc!h  (revolutionary)  contests  when  the  party  struggling  for 
independence   has,  as  I  conceive,  a  right  to  demand  its  acknowledgment  by  neutral 


CHAP.  I.]  THE    HELENA,  45 

(c)  Kinds  of  States. 

THE   HELENA. 
High  Court  of  Admiralty,   1801. 

(4  C.  Robinson,  3.) 

This  was  a  case  of  a  British  ship  wliich  had  been  taken  on  a  voyage 
from  Saffee  to  Lisbon  by  an  Algerine  corsair,  and  sold  by  the  Dey  of 
Algiers  to  a  merchant  of  Minorca,  and  by  him  sold,  on  the  surrender 
of  the  island  of  Minorca  to  the  British  arms,  to  the  present  holder,  a 
merchant  of  London.     On  coming  into  the  port  of  London,  a  warrant 

parties,  and  when  the  acknowledgment  may  be  granted  witliout  departure  from  the 
obligations  of  neutrality.  It  is  the  stage  wlien  the  independence  is  established  as 
matter  of  fact,  so  as  to  leave  the  chance  of  the  opposite  party  to  recover  their 
dominion  utterly  desperate.  The  neutral  nation  must,  of  course,  judge  for  itself 
when  this  period  has  arrived ;  and  as  the  belligerent  nation  has  the  same  right  to 
judge  for  itself,  it  is  very  likely  to  judge  differently  from  the  neutral  and  to  make  it 
a  cause  or  pretext  for  war,  as  Great  Britain  did  expressly  against  France  in  our 
Revolution,  and  substantially  against  Holland. 

"If  war  thus  results,  in  point  of  fact,  from  the  measure  of  recognizing  a  contested 
independence,  the  moral  right  or  wrong  of  tiie  war  depends  upon  the  justice  and  sin- 
cerity and  prudence  with  which  the  recognizing  nation  took  the  step.  I  am  satisfied 
that  the  cause  of  the  South  Americans,  so  far  as  it  consists  in  the  assertion  of  inde- 
pendence against  Spain,  is  just.  But  the  justice  of  a  cause,  iiowever  it  may  enlist 
individual  feelings  in  its  favor,  is  not  sufficient  to  justify  third  parties  in  siding  with  it. 
The  fact  and  the  right  combined  can  alone  authorize  a  neutral  to  acknowledge  a  new 
and  disputed  sovereignty."  J.  Q.  Adams  to  President  ^lonroe,  Aug.  24,  1818.  (1 
Wharton's  Digest,  121.) 

In  M'llvuine  v.  Coxes  Lessee,  1808,  4  Cranch,  209,  212.  the  Supreme  Court  of 
the  United  States  say :  "  That  the  several  States  wliich  composed  this  Union,  so  far  at 
least  as  regarded  their  municipal  regulations,  became  entitled,  from  the  time  when  they 
declared  themselves  independent,  to  all  the  rights  and  powers  of  sovereign  states,  and 
that  they  did  not  derive  them  from  concessions  made  by  the  British  king.  The  treaty 
of  peace  contains  a  recognition  of  their  independence,  not  a  grant  of  it.  From  hence 
it  results,  that  the  laws  of  the  several  State  governments  were  the  laws  of  sovereign 
states,  and  as  such  were  obligatory  upon  the  people  of  such  State  from  the  time  they 
were  enacted."     See  also,  Inf/liss  v.  Trustees,  &c.,  1830,  3  Pet.  99. 

New  states  may  be  recognized  conditionally.  By  the  4od  article  of  the  treat}'  of 
Berlin,  1878,  it  is  stipulated  that  the  independence  of  Roumania  shall  be  recognized  by 
the  high  contracting  parties  "on  the  conditions  laid  down  in  the  two  following  arti- 
cles." Tiiese  conditions  are,  first,  that  no  person  shall  be  deprived  of  civil  or  political 
rights  by  reason  of  his  creed  ;  and,  second,  that  Roumania  shall  restore  to  Russia  cer- 
tain territory  detached  from  Russia  by  the  treaty  of  Paris,  1850. 

Servia  was  recognized  upon  a  similar  condition  as  to  religious  freedom.  (Articles 
34  and  35.)— Ed. 


46  STATES.  [part  I. 

had  been  applied  for  to  arrest  this  ship  on  the  part  of  the  former  British 
proprietor;  but  the  court  refused  a  warrant,  and  directed  a  monition, 
to  issue,  calling  on  the  possessor  to  show  cause,  why  she  should  not  be 
restored  to  the  former  British  owner. 

Sir  W.  Scott.  —  This  is  a  question  arising  on  a  ship,  which  has 
been  purchased  by  a  British  merchant  of  a  Spaniard:  A  claim  is  now 
given  on  the  part  of  the  original  British  proprietor,  on  a  suggestion 
that  the  vessel,  while  sailing  his  property,  was  captured  and  carried 
into  the  Barbary  States,  and  there  sold  to  the  Spanish  merchant,  from 
whom  the  present  holder  purchased.  It  is  certainly  true,  as  it  has  been 
argued  on  the  part  of  the  present  possessor,  that  the  court  is  disposed 
to  pay  particular  respect  to  derivative  titles,  when  fairly  possessed; 
and  it  does  this  on  the  plain  and  general  ground,  that  there  must  be  a 
sequel  of  transactions,  continued  in  a  course  of  time,  which  shall  be 
held  conclusive,  to  cure  antecedent  defects,  and  to  give,  security  to  the 
title  of  a  bond  fide  purchaser.  On  this  foundation  all  property  rests  ; 
with  respect  to  movables,  the  period  is  very  short  for  that  effect.  It 
is  true,  that  ships  pass  by  formal  instruments  and  written  documents, 
and  therefore  do  not  come  entirely  under  the  rules  that  apply  to  the 
transfer  of  movable  property ;  but  still  they  are  entitled  to  the  equity 
of  similar  considerations  to  a  certain  degree,  particularly  where  posi- 
tive regulations  have  not  intervened  to  exclude  them.  This  ship 
appears  to  have  been  taken  by  the  Algeriues,  and  it  is  argued,  that  the 
Algerines  are  to  be  considered  in  this  act  as  pirates,  and  that  no  legal 
conversion  of  property  can  be  derived  from  their  piratical  seizure. 
Certain  it  is,  that  the  African  States  were  so  considered  many  years 
ago,  but  they  have  long  acquired  the  character  of  established  govern- 
ments, with  whom  we  have  regular  treaties,  acknowledging  and  con- 
firming to  them  the  relations  of  legal  states.  So  long  ago  as  the 
time  of  Charles  2d,  Molloy  speaks  of  them  in  language  which,  though 
sufficiently  quaint,  expresses  the  true  character  in  which  they  were 
considered  in  this  time.  —  "  Pirates  that  have  reduced  themselves  into 
a  government  or  state,  as  those  of  Algier,  Sally,  Tripoli,  Tunis,  and 
the  like,  some  do  conceive  ought  not  to  obtain  the  rights  or  solemnities 
of  war,  as  other  towns  or  places  :  for  though  they  acknowledge  the 
supremacy  of  the  Porte,  yet  all  the  power  of  it  cannot  impose  on  them 
more  than  their  own  wills  voluntarily  consent  to.  The  famous 
Carthage  having  yielded  to  the  victorious  Scipio,  did  in  some  respect 
continue,  and  began  to  raise  up  her  drooping  towers,  till  the  knowing 
Cato  gave  council  for  the  total  extirpation ;  out  of  the  ruins  of  winch 
arose  Tunis,  the  revenging  ghost  of  that  famous  city,  who  now,  what 
open  hostility  denied,  by  thieving  and  piracy  continues ;  as  stinking 
elders  spring  from  those  places  where  noble  oaks  have  been  felled  j 


CHAP.  I.]  THE   HELENA.  47 

and  in  their  art  are  become  such  masters,  and  to  that  degree,  as  to 
disturb  the  mightiest  nations  on  the  western  empire  ;  and  thouirh  the 
same  is  small  in  bigness,  yet  it  is  great  in  mischief;  the  consideration 
of  which  put  fire  into  the  breast  of  the  aged  Lewis  IX.  to  burn  up  this 
nest  of  wasps,  who  having  equipt  out  a  fleet  in  his  way  for  Palestine, 
resolved  to  besiege  it :  whereupon  a  council  of  war  being  called,  the 
question  was,  whether  the  same  should  be  summoned,  and  carried  it 
should  not ;  for  it  was  not  fit  the  solemn  ceremonies  of  war  should  be 
lavished  away  on  a  company  of  thieves  and  pirates.  Notwithstanding 
this,  Tunis  and  Tripoli  and  their  sister  Algier  do  at  this  doy  (though 
nests  of  pirates)  obtain  the  right  of  legation.  So  that  now  (though 
indeed  pirates)  yet  having  acquired  the  reputation  of  a  government, 
they  cannot  properly  be  esteemed  pirates,  but  enemies."  i\[olloy, 
p.  33,  §  iv. 

Although  their  notions  of  justice,  to  be  observed  between  nations, 
differ  from  those  which  we  entertain,  we  do  not  on  that  account, 
venture  to  call  in  question  their  public  acts.  As  to  the  mode  of  con- 
fiscation, which  may  have  taken  place  on  this  vessel,  whether  by 
formal  sentence  or  not,  we  must  presume  it  was  done  regularly  in  their 
way,  and  according  to  the  established  custom  of  that  part  of  the 
world.  That  the  act  of  capture  and  condemnation  was  not  a  mere 
private  act  of  depredation,  is  evident  from  this  circumstance,  that  the 
Day  himself  appears  to  have  been  the  owner  of  the  capturing  vessel ; 
at  least  he  intervenes  to  guarantee  the  transfer  of  the  ship  in  question 
to  the  Spanish  purchaser.  There  might  perhaps  be  cause  of  confisca- 
tion, according  to  their  notions,  for  some  infringment  of  the  regula- 
tions of  treat}^ ;  as  it  is  by  the  law  of  treaty  only  that  these  nations 
hold  themselves  bound,  conceiving  (as  some  other  people  have  foolishly 
imagined),  that  there  is  no  other  law  of  nations,  but  that  which  is 
derived  from  positive  com^pact  and  convention.  Had  there  been  any 
demand  for  justice  in  that  country  on  the  part  of  the  owners,  and  the 
Dey  had  refused  to  hear  their  complaints,  there  might  perhaps  have 
been  something  more  like  a  reasonable  ground  to  induce  this  court  to 
look  into  the  transaction,  but  no  such  application  appears  to  have 
been  made.  The  Dey  intervened  in  the  transaction,  as  legalizing  the 
act.  The  transfer  appears,  besides,  to  have  been  passed  in  a  solemn 
manner  before  the  public  officer  of  the  Spanish  government,  the  Spanish, 
consul ;  and  in  the  subsequent  instance,  the  property  is  again  trans- 
ferred to  the  present  possessor,  under  the  public  sanction  of  the  Judge 
of  the  Vice  Admiralty  court  of  Minorca. 

Under  these  circumstances,  I  think  it  is  now  much  too  late  for  this 
court  to  interfere  for  the  purpose  of  annulling  these  several  acts  of 
transfer,  which    appear  to  have  been  made,  in  both   instances,  with 


48  STATES.  [part  I. 

perfect  good  faith  on  the  part  of  the  several  purchasers,  and  for  an 
equivalent  consideration.  Without  considering  at  all  the  question, 
what  rule  would  have  been  applied  to  the  case  of  a  bond  fide  purchase 
from  a  piratical  captor  I  shall  dismiss  tlie  party,  and  decree  the  ship 
to  be  delivered  to  the  British  purchaser.^ 

Party  dismissed. 


THE   CHARKIEH. 
High  Court  of  Admiralty,   1873. 

{Law  Reports,  4  Admiralty  and  Ecclesiastical  Courts,  59.) 

This  was  a  cause  instituted  on  behalf  of  the  !N"etherlands  Steamship 
Co.,  the  owners  of  the  steamship  Batavier,  and  on  behalf  of  the  master, 
crew  and  passengers  thereof  against  the  screw  steamship  Charkieh  and 
her  freight,  for  damages  arising  out  of  a  collision  between  the  Batavier 
and  the  Charkieh  in  the  river  Thames  in  1872. 

As  a  bar  to  the  action  for  damages  resulting  from  tlie  collision,  it 
was  maintained  that  the  ship  was  the  property  of  Ismail  Pacha, 
Khedive  of  Egypt,  the  reigning  sovereign  of  the  state  of  Egypt  and 
that  the  Charkieh  was  a  public  vessel  of  the  government  and  semi- 
sovereign  state  of  Egypt.^ 

Sir  Robert  Phillimore.  .  .  .  From  these  averments  in  the  pleadings, 
and  these  facts  in  the  evidence,  the  following  questions  arise  : 

1.  Is  the  international  status  of  the  Khedive  that  of  sovereign 
prince  of  Egypt  ? 

1  "  The  Algerines,  Tripolitans,  Tunisians,  and  tliose  of  Salee,"  says  Bynkerslioek, 
"  are  not  pirates,  but  regular  organized  societies,  wlio  liave  a  fixed  territory  and  an 
established  government,  witli  whom  we  are  alternately  at  peace  and  at  war,  as  witii 
other  nations,  and  who,  therefore,  are  entitled  to  the  same  rights  as  other  independent 
states.  The  European  sovereigns  often  enter  into  treaties  with  them,  and  the  States- 
General  have  done  it  in  several  instances.  Cicero  defines  a  regular  enemy  to  be  : 
Qui  haberet  rempuhlicam,  curiam  wrarium,  consensumet  concordiam  rivium  rationem  aliquam, 
si  res  itdtulisset,  pads  et  fivderis  (Philip,  p.  iv.  c.  14).  All  tliese  things  are  to  be  found 
among  the  barbarians  of  Africa  ;  for  tliey  pay  the  same  regard  to  treaties  of  peace  and 
alliance  that  otlier  nations  do,  wlio  generally  attend  more  to  tlieir  convenience  than  to 
their  engagements.  And  if  the}'  sliould  not  observe  the  faitii  of  treaties  with  the  most 
scrupulous  respect,  it  cannot  be  well  required  of  them  ;  for  it  would  be  required  in  vain 
of  otlier  sovereigns.  Nay,  if  tliey  sliould  even  act  with  more  injustice  than  other 
nations  do,  they  should  not,  on  that  account,  as  Huberus  very  properly  observes  (l)e 
Jure  Civitat.  1.  iii.  sect.  4,  c.  5,  n.  ult.)  lose  the  rights  and  privileges  of  sovereign 
states."     Bynkerslioek,  Quaest.  Jur.  Pub.  lib.  i.  cap.  xvii.  —  Ed. 

2  Short  statement  substituted  for  that  of  the  report.  —  Ed. 


CHAP.  I.]  THE   CHARKIEH.  49 

2.  Is  he  entitled  by  virtue  of  that  status  to  claim  the  exemption  of 
this  ship  from  the  jurisdiction  of  this  court? 

3.  If  he  be  entitled  to  this  privilege,  has  he  waived  or  forfeited  it  ? 
I  proceed  to  consider  these  questions  in  their  order,  and  first,  as  to  the 
international  status  of  His  Highness  the  Khedive. 

[After  sketching  the  history  of  Egypt  from  Arabian  conquest  in 
838  A,D.  to  the  year  1833,  the  learned  judge  says  :] 

Here  1  will  pause  a  moment  to  consider  the  law  applicable  to  the 
facts  as  now  stated. 

What  Avere  the  relations  at  this  epoch  existing  between  the  Khedive 
and  the  Torte,  and  what  was  the  nature  and  character  of  the  authority 
of  the  former,  so  far  as  foreign  states  are  connected  with  these  con- 
siderations ?  Did  they  entitle  the  Khedive  to  the  privilege  of  the 
sovereign  of  an  independent  state  ?  These  are  questions  which  must 
be  answered,  like  all  others  appertaining  to  international  jurisprudence, 
by  a  reference  to  usage,  authority,  and  the  reason  of  the  thing. 

Many  accredited  writers  and  jurists  have  drawn  a  distinction,  which 
seems  not  to  have  escaped  the  framer  of  the  Khedive's  petition  on 
protest  now  before  me  —  between  a  sovereignty  absolute  and  pure,  and 
that  less  complete  and  perfect  dominion  to  which  the  name  of  half- 
sovereignty  (demi-souverain)  has  been  given.  I  am  inclined  to  think 
that  the  sovereign  of  a  state  in  the  latter  category  may  be  entitled  to 
require  from  foreign  states  the  consideration  and  privileges  which  are 
unquestionably  incident  to  the  sovereign  of  a  state  who  is  in  the  former 
category.  There  are  also  certain  acts  of  feudal  homage,  or,  as  jurists 
say,  servitutes  juris  (jentixnn,  w'hich  do  not  disentitle  the  state  obliged 
to  them  to  an  international  existence  as  a  separate  state. 

Some  examples  of  half  sovereignties  are  to  be  found  in  history. 
Some  of  the  smaller  states  {halb  souverain)  of  the  German  confedera- 
tion, before  it  was  virtually  destroyed  by  Napoleon's  confederation  of 
the  Rhine,  and  formally  extinguished  by  the  abdication  of  the 
Emperor  Francis  in  1806,  also  furnished  examples  of  states  cum 
imviinutione  imj^eril— to  hovvow  i\\Q  expression  of  Grotius.  De  Jure 
Belli  et  Pacis,  lib.  ii.,  c.  xv.,  s.  vii.,  1 ;  Cambridge  edition,  1853,  vol.  2, 
p.  136  —  but  entitled  to  be  treated  as  states  by  foreign  powers. 
The  old  feudal  relations  of  the  Dukes  of  Burgundy,  Normandy,  and 
Brittany  to  Erance  did  not,  I  believe,  prevent  these  princes  from  being 
considered  as  sovereigns  at  home  and  abroad,  and  from  being  entitled 
to  be  represented  by  ambassadors  at  foreign  courts. 

Other  instances  might  be  mentioned,  in  which  neither  the  payment 
of  tribute,  as  in  the  cases  of  the  Kingdom  of  the  Two  Sicilies  to  the 
Pope,  continued  till  1818  A.D.,  or  of  the  King  of  Hungary  to  the 
Sultan,  from   the    reign  of   Ferdinand   the    First   till   the    Treaty   of 

4 


50  STATES.  [part  I. 

Silvatorok  in  1606  A.D.,  nor  other  acts  of  purel^^  feudal  homage,  — 
such  as  the  presentation  of  the  white  palfrey  presented  to  the  Pope  by 
the  King  of  the  Two  Sicilies,  —  See  Phill.  Int.  Law,  2d  ed.,  vol.  2, 
434,  disentitled  the  representative  of  a  state  in  these  conditions  to  the 
enjoyment  abroad  of  the  privileges  usually  accorded  to  a  foreign  spver- 
eign  or  his  representatives. 

It  has  been  well  said  by  a  commentator  on  Martens'  work  :  — 

"La  souverainete  extt-rieure  n'est  autre  chose  que  I'independance  de 
I'Etat  vis-a-vis  des  autres  etats."  Pinheiro  Ferreira  on  Martens,  Precis 
du  droit  des  gens,  edited  by  Verge,  1.  i.  c.  3,  s.  23,  t.  i.  p.  98,  Paris,  1858. 

It  may,  moreover,  be  that,  if  such  a  status  existed  de  facto,  it  would 
not  be  the  province  of  the  tribunals  of  a  foreign  state  to  look  beyond 
the  fact,  or  to  inquire  minutely  or  at  all  into  the  history  of  its  establish- 
ment. International  law  has  no  concern  with  the  form,  character,  or 
power  of  a  state,  if,  through  the  medium  of  a  government,  it  has  such 
an  independent  existence  as  to  render  it  capable  of  entertaining  inter- 
national relations  with  other  states.  An  apt  illustration  of  this  position 
is  furnished  by  the  status  accorded  by  European  Powers  in  more 
modern  times  to  what  were  once  commonly  called  the  Barbary  States. 
They  had  practically  shaken  off  the  Ottoman  dominion.  Bynkershoek 
describes  them  as  "  civitates  quae  certam  scdem  atque  ibi  imperium 
habent,  et  quibuscum  nunc  pax  est  nunc  bellum,  non  secus  ac  cum  aliis 
gentibus,  quique  propterea  ceterorum  principum  jure  esse  videntur." 
Bynkershoek,  Quaestiones  Juris  Publici,  lib.  i.,  c.  17  ;  Opera  Omnia, 
vol.  2,  p.  223,  ed.  1767.  And  in  the  year  1801  Lord  Stowell  fully 
adopted  this  position,  and  asserted  that  the  African  states  had  "  long 
acquired  the  character  of  established  governments,  with  whom  we  have 
regular  treaties,  acknowledging  and  confirming  to  them  the  relations  of 
legal  states  ;  "  and  he  remarked  that,  "  although  their  notion  of  inter- 
national justice  differ  from  those  which  we  entertain,  we  do  not  on 
that  account  venture  to  call  in  question  their  public  acts,"  —  that  is 
to  say,  that  although  they  are  perhaps  on  some  points  entitled  to  a 
relaxed  application  of  the  principles  of  international  law,  derived 
exclusively  from  European  custom,  they  are  nevertheless  treated  as 
having  the  rights  and  duties  of  states  by  the  civilized  world :  The 
Helena,  4  C.  Eob.  3. 

It  is  to  be  observed,  however,  that  the  court  proceeded  upon  the 
principle  that  a  nation  with  whom  we  had  regular  treaties  was  de  facto 
acknowledged  without  a  formal  recognition  to  have  what  jurists  have 
termed  the  right  of  a  political  personality  (Kliiber,  §  25  —  Droit 
des  gens  moderne  de  I'Europe,  par  M.  A.  Ott,  Paris,  1861,  p.  35),  that 
is,  the  position  of  a  state  in  the  great  commonwealth  of  nations. 

If,  at  this  period,  I  had  been  obliged  to  decide  wliether  the  Pacha  of 


CHAP.  I.]  THE   CHARKIEH.  51 

Egypt  was  entitled  to  the  privilege  of  a  sovereign  in  this  country,  my 
decision  would  have  been  influenced  by  a  regard  to  the  de  facto 
sovereign  rights  apparently  exercised  at  this  period  by  his  Highness  ; 
and  perhaps  the  analogy  of  a  European  state  having  absolute  dominion 
over  its  own  subjects  with  feudal  subordination  to  another  state 
might  have  been  cited  with  effect. 

Though,  even  in  this  crisis  of  the  history  of  Egypt,  when  the  inde- 
pendence of  that  country  was  so  nearly  established,  it  must  be  observed 
that  no  attempt  appears  to  have  been  made  on  behalf  of  the  Pacha  to 
exercise  the  principal  international  attribute  of  sovereignty,  namely, 
the  jus  legatlo7ils,  to  be  represented  by  an  ambassador  or  diplomatic 
agent  at  the  court  of  foreign  sovereigns ;  nor  is  there  any  reason  to 
believe  that  such  an  attempt,  if  made,  would  have  been  successful. 

But  in  the  interval  between  1833  A.D.  and  1841  A.t».  the  scene  is 
greatly  changed. 

The  result,  then,  of  the  historical  inquiry  as  to  the  status  of  his 
Highness  the  Khedive,  is  as  follows:  That  in  the  firmans,  whose 
authority  upon  this  point  appears  to  be  paramount,  Egypt  is  invariably 
spoken  of  as  one  of  the  provinces  of  the  Ottoman  Empire.  That  the 
Egyptian  army  is  regulated  as  part  of  the  military  force  of  the 
Ottoman  Empire.  That  the  taxes  are  imposed  and  levied  in  the  name 
of  the  Porte.  That  the  treaties  of  the  Porte  are  binding  upon  Egypt, 
and  that  she  has  no  separate  y?^9  legationis.  That  the  flag  for  both  the 
army  and  the  navy  is  tlie  flag  of  the  Porte. 

All  these  facts,  according  to  the  unanimous  opinion  of  accredited 
writers,  are  inconsistent  and  incompatible  with  those  conditions  of 
sovereignty  which  are  necessary  to  entitle  a  country  to  be  ranked  as 
one  among  the  great  community  of  states. 

Against  this  array  of  negative  proof  is  to  be  set  the  solitary  circum- 
stance that  the  office  of  Khedive  is  hereditary.  It  requires  but  little 
consideration  to  see  that  this  peculiarity  cannot  affect  the  question. 
Egypt  remains  a  province  of  an  empire,  and  does  not  become  an 
empire,  because  her  viceroy  is  hereditary.  The  viceroy  does  not 
become  a  sovereign  prince  because  his  sovereign  permits  him  to  trans- 
mit the  viceroyalty  to  his  descendants  in  the  direct  male  line.  The 
hereditary  character  does  not  confer  on  the  holder,  in  this  case,  the 
right  o^  making  war  and  peace,  of  sending  an  ambassador,  or  of  main- 
taining a  separate  military  or  naval  force,  or  of  governing  at  all,  except 
in  the  name  and  under  the  authority  of  his  sovereign. 

The  hereditary  character  of  the  viceroyalty  may  make  the  viceroy 
the  chief  subject  of  the  Porte,  but  he  is  still  a  subject  prince,  and  not 
a  sovereign  prince  or  "  reigning  sovereign  "  even  "  of  a  semi-sovereign 
state,"  according  to  the  terms  of  the  petition  on  protest. 


52  STATES.  [PAET  I. 

I  have  one  more  observation  to  make  before  I  leave  this  branch  of 
the  subject.  It  cannot  be  urged  in  favour  of  the  exemption  of  the 
Charkieh,  that,  though  she  ma}^  have  been  erroneously  claimed  as  a 
public  vessel  of  the  Egyptian  government,  it  is  substantially  the 
same  thing  if  she  be  a  public  vessel  of  the  Ottoman  government  of 
which  the  government  of  Egypt  is  a  part ;  because  at  the  beginning  of 
these  proceedings  I  directed  the  Registrar  to  write  the  following  letter 
to  the  ambassador  of  the  Forte  :  —  ^ 

Xo  answer  has  been  sent  to  this  letter,  and  no  intervention  of  any 
sort  has  taken  place  on  behalf  of  the  Porte.  Thereupon  this  argument 
occurs.  —  It  cannot  be  denied  that  for  the  abuse  of  the  privilege  of  the 
sovereign  or  the  ambassador,  some  remedy  must  be  found.  It  has 
been  shown  that  the  Khedive  has  six  or  seven  ships  acting  as  merchant- 
men, for  whom  he  claims  the  same  privilege  as  for  the  Charkieh,  and 
the  number  may  be  indefinitely  increased.  It  has  been  said  that  the 
remedy  is  to  be  found  in  an  application  to  the  sovereign  to  abate  the 
abuse. 

Any  such  application  must  be  made  in  the  present  instance  to  the 
Porte.  But  the  ambassador  of  the  Porte  asserts  no  such  claim.  It  is 
the  governor  of  a  province  of  the  state  that  insists  upon  the  privilege. 
To  communicate  directly  with  the  governor  in  this  matter  would  be  to 
derogate  from  the  dignity  of  his  sovereign,  and  to  place  in  the  rank  of 
a  sovereign  a  governor  whom  his  own  sovereign  has  placed  in  the  rank 
of  a  subject. 

Lastly,  no  treaty  ever  having  been  made  with  his  Highness,  no 
ambassador  ever  received  from  or  sent  to  him,  British  consuls  in 
Egypt  receiving  no  exequatur  from  him,  there  being,  in  other  words,  no 
de  facto  recognition  of  his  Highness  as  a  sovereign  by  our  government, 
has  there  been  any  recognition  dejure  of  him  in  this  capacity  ? 

The  Court  of  Chancery,  when  a  plaintiff  averred  in  his  bill  that  a 
certain  republic  in  Central  America  had  been  recognized  as  an  inde- 
pendent government,  put  itself  in  communication  with  the  Foreign 
Office,  and  after  such  communication,  declared  itself  authorized  to  state 
that  the  republic  in  question  had  never  been  recognized  by  the  govern- 
ment of  this  country,  and  on  the  ground  that  what  was  pleaded  was 
" historically  false,"  allowed  a  demurrer  to  the  bill:  Taylor  v.  Barclay, 
2  Sim.  213.  I  have  communicated  with  the  Foreign  Office,  and  have 
received  the  following  answer  to  my  questions,  viz. :  "  that  the  Khe- 
dive has  not  been  and  is  not  now  recognized  by  Her  Majesty  as  reign- 
ing sovereign  of  the  state  of  Egypt."  "  He  is  recognized  by  Her 
]\[a,jesty's  government  as  the  hereditary  ruler  of  the  province  of  Egypt 
under  the  supremacy  of  the  Sultan  of  Turkey." 

1  Letter  omitted. -Ed.       ^  .  ^^^  ^^^  ,7^  ,  -^^  _  ^_,j  ^ 


CHAP.  I.]  THORTNGTON    V.  SMITH    AND    HARTLEY.  53 

Upon  all  these  facts  I  have  arrived  at  the  conclusion  that  indepen- 
dently of  any  other  consideration,  his  Highness  the  Khedive  has  failed 
to  establish  his  claim  to  exempt  his  vessel  from  the  process  of  this 
court.^ 


JACK   THORTXGTOX    v.   WILLIAM   B.    SMITH   AND  JOHN 

H.    HARTLEY. 

Supreme  Court  of  the  United  States.     1868. 

(8  Wallace,  1.) 

The  Chief  Justice  [Chase]  delivered  the  opinion  of  the  court. 
The  questions  before  us  upon  this  appeal  are  these  : 

1.  Can  a  contract  for  the  payment  of  Confederate  notes,  made  dur- 
ing the  late  rebellion,  between  parties  residing  within  the  so-called 
Confederate  States,  be  enforced  at  all  in  the  courts  of  the  United 
States  ? 

2.  Can  evidence  be  received  to  prove  that  a  promise  expressed  to 
be  for  the  payment  of  dollars  was,  in  fact,  made  for  the  payment  of 
any  other  than  lawful  dollars  of  the  United  States  ? 

3.  Does  the  evidence  in  the  record  establish  the  fact  that  the  note 
for  ten  thousand  dollars  was  to  be  paid,  by  agreement  of  the  parties, 
in  Confederate  notes  ? 

The  first  question  is  by  no  means  free  from  difficulty.  It  cannot  be 
questioned  that  the  Confederate  notes  were  issued  in  furtherance  of  an 
unlawful  attempt  to  overthrow  the  government  of  the  United  States, 
by  insurrectionary  force.  Nor  is  it  a  doubtful  principle  of  law  that 
no  contracts  made  in  aid  of  such  an  attempt  can  be  enforced  through 
the  courts  of  the  country  whose  government  is  thus  assailed.  But, 
was  the  contract  of  the  parties  to  this  suit  a  contract  of  that  character  ? 
Can  it  be  fairly  described  as  a  contract  in  aid  of  the  rebellion  ? 

In  examining  this  question  the  state  of  that  part  of  the  country  in 
which  it  was  made  must  be  considered.  It  is  familiar  history,  that 
early  in  1861  the  authorities  of  seven  States,  supported,  as  was  alleged, 

1  For  the  present  situation  of  Egypt,  see  Ab(l-ul-}fe.'!sth  v.  Farra,  1888,  L.  R.,  13 
A.  C.431;  Sir  Alfred  (Lord)  Milner's  "England  in  Egypt,"  (1892)  ;  White's  "Expan- 
sion of  Egypt,"  1899. 

For  the  international  status  of  Cuba  during  the  American  occupation  see  Neely  v. 
Henkel,  1900,  180  U.  S.  109. 

For  the  status  of  the  American  Indian  tribes,  or  "  Nations,"  see  The  Cherokee  Nation 
V.  Ga.,  1831,  5  Pet.  1,  especially  the  concurring  opinion  of  Mr.  Justice  Baldwin,  SO- 
SO.     This  matter  is  discussed  in  §  23,  infra.  —  Ed. 


54  STATES.  [part  I. 

by  popular  majorities,  combined  for  the  overthrow  of  the  National 
Union,  and  for  the  establishment,  within  its  boundaries,  of  a  separate 
and  independent  confederation.  A  governmental  organization,  repre- 
senting these  States,  was  established  at  Montgomery,  in  Alabama,  first 
under  a  provisional  constitution,  and  afterwards  under  a  constitution 
intended  to  be  permanent.  In  the  course  of  a  few  months,  four  other 
States  acceded  to  this  confederation,  and  the  seat  of  the  central 
authority  was  transferred  to  Richmond,  in  Virginia.  It  was,  by  the 
central  authority  thus  organized,  and  under  its  direction,  that  civil 
war  was  carried  on  upon  a  vast  scale  against  the  government  of  the 
United  States  for  more  than  four  years.  Its  power  was  recognized 
as  supreme  in  nearly  the  whole  of  the  territory  of  the  States  con- 
federated in  insurrection.  It  was  the  actual  government  of  all  the 
insurgent  States,  except  those  portions  of  them  protected  from  its 
control  by  the  presence  of  the  armed  forces  of  the  National  government. 

What  was  the  precise  character  of  this  government  in  contemplation 
of  law  ? 

It  is  difficult  to  define  it  with  exactness.  Any  definition  that  may 
be  given  may  not  improbably  be  found  to  require  limitation  and  quali- 
fication. But  the  general  principles  of  law  relating  to  de  facto  govern- 
ment will,  we  think,  conduct  us  to  a  conclusion  sufficiently  accurate. 

There  are  several  degrees  of  what  is  called  de  facto  government. 

Such  a  government,  in  its  highest  degree,  assumes  a  character  very 
closely  resem.bling  that  of  a  lawful  government.  This  is  when  the 
usurping  government  expels  the  regular  authorities  from  their  custom- 
ary seats  and  functions,  and  establishes  itself  in  their  place,  and  so 
becomes  the  actual  government  of  a  country.  The  distinguishing 
characteristic  of  such  a  government  is,  that  adherents  to  it  in  war 
against  the  government  de  jure  do  not  incur  the  penalties  of  treason  ; 
and  under  certain  limitations,  obligations  assumed  by  it  in  behalf  of 
the  country,  or  otherwise,  will,  in  general,  be  respected  by  the  govern- 
ment de  jure  when  restored. 

Examples  of  this  description  of  "government  de  facto  are  found  in 
English  history.  The  statute  11  Henry  VII.,  c.  1,  2  British  Stat,  at 
Large,  82,  relieves  from  penalties  for  treason  all  persons  who,  in  de- 
fence of  the  king,  for  the  time  being,  wage  war  against  those  who 
endeavor  to  subvert  his  authority  by  force  of  arms,  though  warranted 
in  so  doing  by  the  lawful  monarch,  4  Commentaries,  77. 

But  this  is  where  the  usurper  obtains  actual  possession  of  the  royal 
authority  of  the  kingdom  ;  hot  when  he  has  succeeded  only  in  estab- 
lishing his  power  over  particular  localities.  Being  in  possession, 
allegiance  is  due  to  him  as  king  de  facto. 

Another  example  may  be  found  in  the  government  of  England  under 


CHAP.  I.]  THORINGTON    V.    SMITH    AND    HARTLEY.  55 

the  Commonwealth,  first  by  Parliament,  and  afterwards  by  Cromwell 
as  Protector.  It  was  not,  in  the  contemplation  of  law,  a  government 
dejure,  but  it  was  a  government  de  facto  in  the  most  absolute  sense. 
It  incurred  obligations  and  made  conquests  which  remained  the  obliga- 
tions and  conquests  of  England  after  the  restoration.  The  better 
opinion  doubtless  is,  that  acts  done  in  obedience  to  this  government 
could  not  be  justly  regarded  as  treasonable,  though  in  hostility  to  the 
king  dejure.  Such  acts  were  protected  from  criminal  prosecution  by 
the  spirit,  if  not  by  the  letter,  of  the  statute  of  Henry  the  Seventh. 
It  was  held  otherwise  by  the  .judges  by  whom  Sir  Henry  Vane  was 
tried  for  treason,  6  State  Trials,  119,  in  the  year  following  the  restora- 
tion.    But  such  a  judgment,  in  such  a  time,  has  little  authority. 

It  is  very  certain  that  the  Confederate  government  was  never 
acknowledged  by  the  United  States  as  a  de  facto  government  in  this 
sense.  Kor  was  it  acknowledged  as  such  by  other  powers.  No  treaty 
was  made  by  it  with  any  civilized  state.  No  obligations  of  a  National 
character  were  created  by  it,  binding  after  its  dissolution,  on  the  States 
which  it  represented,  or  on  the  National  government.  Prom  a  very 
early  period  of  the  civil  war  to  its  close,  it  was  regarded  as  simply  the 
military  representative  of  the  insurrection  against  the  authority  of 
the  United  States. 

But  there  is  another  description  of  government,  called  also  by  pub- 
licists a  government  de  facto,  but  which  might,  perhaps,  be  more  aptly 
denominated  a  government  of  paramount  force.  Its  distinguishing 
characteristics  are  (1),  that  its  existence  is  maintained  by  active  jnili- 
tary  power,  within  the  territories,  and  against  the  rightful  authority 
of  an  established  and  lawful  government ;  and  (2),  that  while  it  exists, 
it  must  necessarily  be  obeyed  in  civil  matters  by  private  citizens  who, 
by  acts  of  obedience,  rendered  in  submission  to  such  force,  do  not 
become  responsible,  as  wrongdoers,  for  those  acts,  though  not  warranted 
by  the  laws  of  the  rightful  government.  Actual  governments  of  tliis 
sort  are  established  over  districts  differing  greatly  in  extent  and  con- 
ditions. They  are  usually  administered  directly  by  military  authority, 
but  they  may  be  administered,  also,  by  civil  authority,  supported  more 
or  less  directly  by  military  force. 

One  example  of  this  sort  of  government  is  found  in  the  case  of  Cas- 
tine,  in  Maine,  reduced  to  British  possession  during  the  war  of  1812. 
From  the  1st  of  September,  1814,  to  the  ratification  of  the  treaty  of 
peace  in  1815,  according  to  the  judgment  of  this  court  in  Uiiited  States 
Y.Rice,  4  Wheaton,  253,  "the  British  government  exercised  all  civil 
and  military  authority  over  the  place."  "  The  authority  of  the  United 
States  over  the  territory  was  suspended,  and  the  laws  of  the  United 
States  could  no  longer  be  rightfully  enforced  there,  or  be  obligatory 


56  STATES.  [part  I. 

upon  the  inhabitants  who  remained  and  submitted  to  the  conqueror. 
By  tlie  surrender,  the  inhabitants  passed  under  a  temporary  allegiance 
to  the  British  government,  and  were  bound  by  such  laws,  and  such 
only,  as  it  chose  to  recognize  and  impose."  It  is  not  to  be  inferred 
from  this  that  the  obligations  of  the  people  of  Castine  as  citizens  of 
the  United  States  were  abrogated.  They  Avere  suspended  merely  by 
the  presence,  and  only  during  the  presence,  of  the  paramount  force. 
A  like  example  is  found  in  the  case  of  Tampico,  occupied  during  the 
war  with  Mexico  by  the  troops  of  the  United  States.  It  was  deter- 
mined by  this  court,  in  Fleming  v.  Page,  9  Howard,  614,  that,  although 
Tampico  did  not  become  a  port  of  the  United  States  in  consequence 
of  that  occupation,  still,  having  come,  together  with  the  whole  State 
of  Tamaulipas,  of  which  it  was  part,  into  the  exclusive  possession  of 
the  ISTational  forces,  it  must  be  regarded  and  respected  by  other  nations 
as  the  territory  of  the  United  States.  These  were  cases  of  temporary 
possession  of  territory  by  lawful  and  regular  governments  at  war  with 
the  country  of  which  the  territory  so  possessed  was  part. 

The  central  government  established  for  the  insurgent  States  differed 
from  the  temporary  governments  at  Castine  and  Tampico,  in  the  cir- 
cumstance, that  its  authority  did  not  originate  in  lawful  acts  of  regular 
war,  but  it  was  not,  on  that  account,  less  actual  or  less  supreme.  And 
we  think  that  it  must  be  classed  among  the  governments  of  which  these 
are  examples.  It  is  to  be  observed  that  the  rights  and  obligations  of 
a  belligerent  were  conceded  to  it,  in  its  military  character,  very  soon 
after  the  war  began,  from  motives  of  humanity  and  expediency  by  the 
United  States.  The  whole  territory  controlled  by  it  was  thereafter 
held  to  be  enemies'  territory,  and  the  inhabitants  of  that  territory  were 
held,  in  most  respects,  for  enemies.  To  the  extent,  then,  of  actual 
supremacy,  however  unlawfully  gained,  in  all  matters  of  government 
within  its  military  lines,  the  power  of  the  insurgent  government  can- 
not be  questioned.  That  supremacy  did  not  justify  acts  of  hostility 
to  the  United  States.  How  far  it  should  excuse  them  must  be  left  to 
the  lawful  government  upon  the  re-establishment  of  its  authority. 
But  it  made  obedience  to  its  authority  in  civil  and  local  matters  not 
only  a  necessity  but  a  duty.  Without  such  obedience,  civil  order  was 
impossible. 

It  was  by  this  government  exercising  its  power  throughout  an  im- 
mense territory,  that  the  Confederate  notes  were  issued  early  in  the 
war,  and  these  notes  in  a  short  time  became  almost  exclusively  the 
currency  of  the  insurgent  States.  As  contracts  in  themselves,  except 
in  the  contingency  of  successful  revolution,  these  notes  were  nullities; 
for,  except  in  that  event,  there  could  be  no  payer.  They  bore,  indeed, 
this  character  upon  their  face,  for  they  were  made  payable  only  "  after 


CHAP.  I.]  THORINGTON    V.    SMITH   AND    HAETLEY.  57 

the  ratification  of  a  treaty  of  peace  between  the  Confederate  States 
and  the  United  States  of  America."  While  the  war  lasted,  however, 
they  had  a  certain  contingent  value,  and  were  used  as  money  in  nearlj^ 
all  the  business  transactions  of  many  millions  of  people.  They  must 
be  regarded,  therefore,  as  a  currency,  imposed  on  the  community  by 
irresistible  force. 

It  seems  to  follow  as  a  necessary  consequence  from  this  actual 
supremacy  of  the  insurgent  government,  as  a  belligerent,  within  the 
territory  where  it  circulated,  and  from  the  necessity  of  civil  obedience 
on  the  part  of  all  who  remained  in  it,  that  this  currency  must  be  con- 
sidered in  courts  of  law  in  the  same  light  as  if  it  had  been  issued  by 
a  foreign  government,  temporarily  occupying  a  part  of  the  territory 
of  the  United  States.  Contracts  stipulating  for  payments  in  this  cur- 
rency, cannot  be  regarded  for  that  reason  only,  as  made  in  aid  of  the 
foreign  invasion  in  the  one  case,  or  of  the  domestic  insurrection  in  the 
other.  They  have  no  necessary  relations  to  the  hostile  government, 
whether  invading  or  insurgent.  They  are  transaction  in  the  ordinary 
course  of  civil  society,  and,  though  they  may  indirectly  and  remotely 
promote  the  ends  of  the  unlawful  government,  are  without  blame, 
except  when  proved  to  have  been  entered  into  with  actual  intent  to 
further  invasion  or  insurrection.  We  cannot  doubt  that  such  contracts 
should  be  enforced  in  the  courts  of  the  United  States,  after  the  res- 
toration of  peace,  to  the  extent  of  their  just  obligation.  The  first 
question,  therefore,  must  receive  an  affirmative  answer. 

The  second  question.  Whether  evidence  can  be  received  to  prove 
that  a  promise,  made  in  one  of  the  insurgent  States,  and  expressed  to 
be  for  the  payment  of  dollars,  without  qualif^'ing  words,  was  in  fact 
made  for  the  payment  of  any  other  than  lawful  dollars  of  the  United 
States  ?  is  next  to  be  considered. 

It  is  quite  clear  that  a  contract  to  pay  dollars,  made  between  citizens 
of  any  State  of  the  Union,  while  maintaining  its  constitutional  rela- 
tions with  the  Xational  government,  is  a  contract  to  pay  lawful  money 
of  the  United  States,  and  cannot  be  modified  or  explained  by  parol 
evidence.  But  it  is  equally  clear,  if  in  any  other  country,  coins  or 
notes  denominated  dollars  should  be  authorized  of  different  value  from 
the  coins  or  notes  which  are  current  here  under  that  name,  that,  in  a 
suit  upon  a  contract  to  pay  dollars,  made  in  that  country,  evidence 
would  be  admitted  to  prove  what  kind  of  dollars  were  intended,  and, 
if  it  should  turn  out  that  foreign  dollars  were  meant,  to  prove  their 
equivalent  value  in  lawful  money  of  the  United  States.  Such  evidence 
does  not  modify  or  alter  the  contract.  It  simply  explains  an  am- 
biguity, which,  under  the  general  rules  of  evidence,  may  be  removed 
by  parol  evidence. 


58  STATES.  [part  I. 

We  have  already  seen  that  the  people  of  the  insurgent  States,  under 
the  Confederate  government  were,  in  legal  contemplation,  substantially 
in  the  same  condition  as  inhabitants  of  districts  of  a  country  occupied 
and  controlled  by  an  invading  belligerent.  The  rules  which  would 
apply  in  the  former  case  would  apply  in  the  latter  ;  and,  as  in  the 
former  case,  the  people  must  be  regarded  as  subjects  of  a  foreign 
power,  and  contracts  among  them  be  interpreted  and  enforced  with 
reference  to  the  conditions  imposed  by  the  conqueror,  so  in  the  latter 
case,  the  inhabitants  must  be  regarded  as  under  the  authority  of  the 
insurgent  belligerent  power  actually  established  as  the  government 
of  the  country,  and  contracts  made  with  them  must  be  interpreted  and 
enforced  with  reference  to  the  condition  of  things  created  by  the  acts 
of  the  governing  power. 

It  is  said,  indeed,  that  under  the  insurgent  government  tlie  Avord 
dollar  had  the  same  meaning  as  under  the  government  of  the  United 
States ;  that  the  Confederate  notes  were  never  made  a  legal  tender, 
and,  therefore,  that  no  evidence  can  be  received  to  show  any  other 
meaning  of  the  word  when  used  in  a  contract.  But,  it  must  be  re- 
membered that  the  whole  condition  of  things  in  the  insurgent  States 
was  matter  of  fact  rather  than  matter  of  law,  and,  as  matter  of  fact, 
these  notes,  payable  at  a  future  and  contingent  day,  which  has  not 
arrived  and  can  never  arrive,  were  forced  into  circulation  as  dollars,  if 
not  directly  by  the  legislation,  yet  indirectly  and  quite  as  effectually 
by  the  acts  of  the  insurgent  government.  Considered  in  themselves, 
and  in  the  light  of  subsequent  events,  these  notes  had  no  real  value, 
but  they  were  made  current  as  dollars  by  irresistible  force.  They  were 
the  only  measure  of  value  which  the  people  had,  and  their  use  was 
a  matter  of  almost  absolute  necessity.  And  this  use  gave  them  a  sort 
of  value,  insignificant  and  precarious  enough  it  is  true,  but  always 
having  a  sufficiently  definite  relation  to  gold  and  silver,  the  universal 
measures  of  value,  so  that  it  was  always  easy  to  ascertain  how  much 
gold  and  silver  was  the  real  equivalent  of  a  sum  expressed  in  this  cur- 
rency. In  the  light  of  these  facts  it  seems  hardly  less  than  absurd  to 
say  that  these  dollars  must  be  regarded  as  identical  in  kind  and  value 
with  the  dollars  which  constitute  the  money  of  the  United  States. 
We  cannot  shut  our  eyes  to  the  fact  that  they  were  essentially  differ- 
ent in  both  respects  ;  and  it  seems  to  us  that  no  rule  of  evidence  prop- 
erly understood  requires  us  to  refuse,  under  the  circumstances,  to 
admit  proof  of  the  sense  in  which  the  word  dollar  is  used  in  the  con- 
tract before  us.  Our  answer  to  the  second  question  is,  therefore,  also 
in  the  affirmative.  We  are  clearly  of  opinion  that  such  evidence 
must  be  received  in  respect  to  such  contract,  in  order  that  justice  may 
be  done  between  the  parties,  and  that  the  party  entitled  to  be  paid  in 

ft  Ww^roA  sM«C .      >iflJLJL-  i-J'/Uj-  t 


CHAP.  I.]        THE    HOME   INSURANCE   COMPANY'S   CASE.  59 

these  Confederate  dollars  can  recover  their  actual  value  at  the  time 
and  place  of  the  contract,  in  lawful  money  of  the  United  States. 

We  do  not  think  it  necessary  to  go  into  a  detailed  examination  of 
the  evidence  in  the  record  in  order  to  vindicate  our  answer  to  the  third 
question.  It  is  enough  to  say  that  it  has  left  no  doubt  in  our  minds 
that  the  note  for  ten  thousand  dollars,  to  enforce  payment  of  which 
suit  was  brought  in  the  circuit  court,  was  to  be  paid,  by  agreement  of 
the  parties,  in  Confederate  notes. 

It  follows  that  the  decree  of  the  circuit  court  must  be  reversed 
and  the  cause  remanded,  for  further  hearing  and  decree,  in  conformity 
with  this  opinion. 


THE   HOME   INSURANCE   COMPANY'S   CASE. 
CouKT  OF  Claims,   1872. 

(8  Court  of  Claims,  449.) 

Drake,  Ch.  J.,  delivered  the  opinion  of  the  court. 

This  case,  considered  merely  as  a  claim  for  the  proceeds  of  cotton 
captured  by  the  military  forces  of  the  United  States  during  the  rebel- 
lion, has  no  point  of  controversy.  The  claimant's  ownership,  the 
capture  and  sale  of  the  cotton,  and  the  payment  of  the  proceeds 
thereof  into  the  treasury,  are  all  established.  The  only  question 
raised  in  the  case  is  as  to  the  right  of  the  claimants,  a  corporation 
created  by  an  act  passed  by  the  Legislature  of  the  State  of  Georgia, 
while  that  State  was  in  armed  rebellion  against  the  Government  of 
the  United  States,  to  sue  in  this  court  for  the  recovery  of  said  pro- 
ceeds. The  counsel  for  the  Government  urge  that  the  claimant  has 
no  legal  existence  entitling  it  to  one  in  this  court;  that  the  act  creat- 
ing it  was  the  act  of  a  Legislature  which  had  no  lawful  authority  to 
pass  any  such  act;  that  no  legislation  whatever  of  the  late  rebel 
States  is  entitled  as  a  matter  of  right  to  recognition  in  the  Union; 
and  that,  therefore,   the  claimant's  petition  should  be  dismissed. 

The  question  thus  presented  has  not,  we  believe,  been  before  raised. 
If  we  were  required  to  pass  upon  it  without  any  guidance  from  the 
appellate  court,  we  should  approach  its  consideration  with  more  hesi- 
tation than  we  now  feel.  But  we  consider  the  question  practically 
decided  by  the  Supreme  Court  in  Texas  v.  White  (7  Wallace,  700), 
where,   as  we  conceive,  the  following  propositions  were  enunciated. 

1.  That  no  rebel  State  ceased,  by  its  act  of  secession  and  rebellion, 
to  be  a  State  of  the  Union. 


60  STATES.  [part  I. 

2.  That  the  citizens  of  any  such  State  did  not,  by  such  secession 
and  rebellion,  cease  to  be  citizens  of  the  Union. 

3.  Tliat  the  Legislature  of  any  such  State  cannot  be  regarded  in  the 
courts  of  the  United  States  as  a  lawful  legislature,  or  its  acts  as 
lawful  acts. 

4.  That,  nevertheless,  the  rebel  government  in  any  such  State 
was  its  only  actual  government,  which,  having  displaced  the  regular 
and  lawful  authority,  and  established  itself  in  the  customary  seats  of 
power  and  in  the  exercise  of  the  ordinary  functions  of  administration, 
constituted  a  de  facto  government,  whose  acts,  during  its  existence  as 
such,  would  be  effectual,  and,  in  many  respects,  valid. 

5.  That  the  acts  of  such,  a  de  facto  though  unlawful  government, 
tvhich  must  be  regarded  as  valid,  are  those  that  are  necessary  to  peace 
and  good  order  among  citizens ;  such,  for  example,  as  acts  sanctioning 
and  protecting  marriage  and  the  domestic  relations,  governing  the 
course  of  descents,  regulating  the  conveyance  and  transfer  of  prop- 
erty, real  and  personal,  and  providing  remedies  for  injuries  to  person 
and  estate,  and  other  similar  acts. 

6.  That  the  acts  of  such  a  government  which  must  be  regarded  as 
invalid  and  void  are  those  that  were  in  furtherance  or  support  of  re- 
bellion against  the  United  States,  or  intended  to  defeat  the  just  rights 
of  citizens,  and  other  acts  of  a  like  nature. 

From  all  of  which  propositions  we  deduce  this  general  jiroposition 
as  the  final  doctrine  of  that  court  on  this  subject,  namely :  That  what- 
ever act  of  the  Legislature  of  a  rebel  State  did  not  tend  to  further  or 
support  the  rebellion,  or  to  defeat  the  just  rights  of  citizens,  but  re- 
lated merely  to  the  domestic  affairs  of  the  people  of  the  State  as  a 
community  aside  from  the  connection  of  that  people  with  the  rebel- 
lion, is  a  valid  act  by  a  de  facto  though  unlawful  government,  which 
will  be  sustained  in  the  courts  of  the  United  States. 

This  seems  to  us  to  draw  the  only  line  of  distinction  which  can  well 
be  drawn,  and  to  be  the  only  alternative  to  the  entire  refusal  of  recog- 
nition to  such  acts.  It  is  clearly  impossible  for  the  judiciary  to  pass 
upon  the  expediency  of  every  act  of  a  merely  municipal  character 
passed  by  a  rebel  legislature,  or  to  decide  whether  every  such  act  was 
necessary  to  peace  and  good  order  among  citizens;  but  there  is  no 
difficulty  in  applying  to  every  such  act  these  two  simple  tests: 
1^''''"'  1.  Was  it  intended  to  further  or  support  the  rebellion,  or  to  defeat 
*  I  the  just  rights  of  citizens?  and  2.  Was  it  intended  merely  to  regulate 
the  domestic  affairs  of  the  people  of  the  State,  aside  from  their  con- 
nection with  the  rebellion?  If  the  first  question  can  be  answered 
negatively,  and  the  second  affirmatively,  then  it  seems  to  us  that  the 
ruling  of  the  Supreme   Court  requires  us  to  give  effect   to  the  act. 


CHAP.  I.]        THE   HOME    INSURANCE   COMPANY'S    CASE.  61 

Any  other  view  of  the  matter  would,  in  our  judgment,  involve  the 
domestic  affairs  of  the  people  of  the  rebel  States  in  a  confusion  and 
entanglement  from  which  extrication  would  be  almost  impossible. 

Applying  to  the  charter  of  the  Home  Insurance  Com])any  the  tests 
indicated,  we  do  not  find  that  its  enactment  was  intended  to  further 
or  support  the  rebellion,  or  to  defeat  the  just  rights  of  citizens;  but, 
on  the  other  hand,  that  it  was  intended  as  a  means,  so  far  as  it  went, 
of  regulating  the  domestic  affairs  of  the  State;  in  which  Avork  in 
every  civilized  state  the  creation  of  corporations  bears  no  inconsider- 
able part. 

We  therefore  hold  the  company  to  have  a  valid  existence,  entitling 
it  to  sue  in  this  court;  and  award  judgment  in  its  favor  for  the  pro- 
ceeds of  Its  cotton  found  to  have  been  captured.^ 

1  Affirmed  on  appeal  in  U.  S.  Supreme  Court,  1874,  22  Wall.  99. 

Otlier  leading  cases  on  the  status  and  acts  of  the  Confederacy  and  of  its  members 
are:  Fijicld  v.  Insurance  Co.,  1804,  47  l^enn.  State,  166;  Mauran  v.  Insurance  Co.,  1867, 
6  Wall.  1  ;  Miller  v.  U.  S.,  1870,  11  Wall.  268;  Sprott  v.  U.  S.,  1874,  20  Wall.  459; 
Williams  V.  Bruffy,  1877,  96  U.  S.  176  ;  Ford  v.  Suryet,  1878,  97  U,  S.  594;  Kelcham 
V.  Buckley,  1878,  99  U.  S.  188.  In  Baldy  v.  Hunter,  1897,  171  U.  S.  388,  Mr.  Justice 
Harlan  says  (after  an  elaborate  enumeration  and  discussion  of  the  leading  cases  deal- 
ing with  the  status  of  Confederate  States)  :    "From  these  cases  it  may  be  deduced  — 

"  That  the  transactions  between  persons  actually  residing  within  the  territory  dom- 
inated by  the  government  of  the  Confederate  States  were  not  invalid  for  the  reason 
only  that  they  occurred  under  the  sanction  of  the  laws  of  that  government  or  of  any 
local  government  recognizing  its  autliority  ;  that,  witliin  such  territory,  the  preserva- 
tion of  order,  the  maintenance  of  police  regulations,  the  prosecution  of  ciiraes,  the 
protection  of  property,  the  enforcement  of  contracts,  the  celebration  of  marriages,  the 
settlement  of  estates,  the  transfer  and  descent  of  property,  and  similar  or  kindred 
subjects  were,  during  the  war,  under  the  control  of  the  local  governments  constituting 
the  so-called  Confederate  States. 

"  That  what  occurred  or  was  done  in  respect  of  such  matters  under  the  authority  of 
the  laws  of  these  local  de  facto  governments  should  not  be  disregarded  or  held  to  be 
invalid  merely  because  those  governments  were  organized  in  hostility  to  the  Union 
established  by  the  national  Constitution  ;  this,  because  the  existence  of  war  between 
the  United  States  and  the  Confederate  States  did  not  relieve  those  who  were  within 
the  insurrectionary  lines  from  the  necessity  of  civil  obedience,  nor  destroy  the  bonds 
of  society,  nor  do  away  with  civil  government  or  the  regular  administration  of  the 
laws,  and  because  transactions  in  the  ordinary  course  of  civil  society  as  organized 
within  the  enemy's  territory,  although  they  may  have  indirectly  or  remotely  promoted 
the  ends  of  the  de  facto  or  unlawful  government  organized  to  effect  a  dissolution  of 
the  Union,  were  without  blame  'except  when  proved  to  have  been  entered  into  with 
actual  intent  to  further  invasion  or  insurrection  ; '  and, 

"That  judicial  and  legislative  acts  in  the  respective  States  composing  the  so-called 
Confederate  States  should  be  respected  by  tiie  courts  if  they  were  not  hostile  in  their 
purpose  or  mode  of  enforcement  to  the  authority  of  the  National  Government,  and  did 
not  impair  the  rights  of  citizens  under  the  Constitution." 

And  in  the  very  recent  case  of  Oakes  v.  U.  S.,  1898,  174  U.  S.  778,  794,  Mr.  Justice 
Gray,  speaking  for  the  court,  says  : 

"  The  government  of  the  Confederate  States,  although  in  no  sense  a  government 


62  STATES.  [part  I. 

UNDERBILL  v.  HERNANDEZ. 

United  States  Circuit  Court  of  Appeals,  2d  Circuit,  1895. 

(26  United  States  Appeals,  573.) 

Wallace,  Circuit  Judge,  delivered  the  opinion  of  the  court. 
This  is  a  writ  of  error  by  George  F.  Underhill,  the  plaintiff  in  the 
court  below,  to  review  a  judgment  for  Jose  Manuel  Hernandez,  the 

de  jure,  and  never  recognized  by  the  United  States  as  in  all  respects  de  facto,  yet  was 
an  organized  and  actual  government,  maintained  by  military  power,  throughout  the 
limits  of  the  States  that  adhered  to  it,  except  in  those  portions  of  them  protected  from 
its  control  by  the  presence  of  the  armed  forces  of  the  United  States;  and  the  United 
States,  from  motives  of  humanity  and  expediency,  liad  conceded  to  that  government 
some  of  the  rights  and  obligations  of  a  belligerent.  Prize  Cases,  2  Black,  635,  G73, 
674  ;  Thorington  v.  Smith,  8  Wall.  1,  7,  9,  10 ;  Ford  v.  Surget,  97  U.  S.  594,  604,  605 ;  The 
Lilla,  -1  Sprague,  177,  and  2  Clifford,  169." 

The  Lilla  referred  to  was  a  Maine  brig  called  the  Betsy  Ames,  captured  by  a  Con- 
federate privateer  comraiinded  by  H.  S.  Libby,  carried  into  Charleston,  S.  C,  and 
there  condemned  and  sold,  the  purchasers  being  John  Fraser  &  Co.  of  that  city.  Her 
name  was  changed  to  the  Mary  Wright,  and,  loaded  with  cotton,  under  the  command 
of  Libby,  she  ran  the  blockade,  arrived  at  Liverpool  on  the  2d  of  April,  1802,  and  dis- 
posed of  her  cargo.  April  24th  she  was  registered  as  a  British  vessel,  called  the  Lilla, 
and  in  the  name  of  R.  G.  B.,  as  sole  owner.  A  fortnight  later  she  sailed  for  Nassau, 
N.  P.,  under  the  command  of  A.,  according  to  her  papers,  but  really  still  under  com- 
mand of  Libby.  There  is  evidence  going  to  show  that  it  was  arranged  that  Fraser  & 
Co.  should  have  a  steamer  of  theirs  follow  to  Nassau,  there  take  on  the  Lilla's  cargo 
and  proceed  to  Charleston. 

Parts  of  the  cargo  were  falsely  documented  in  the  name  of  R.  G.  B.  for  the  purpose 
of  deceiving  the  United  States  cruisers. 

The  vessel  was  seized  by  the  United  States  gunboat  Quaker  City,  brought  in,  and 
claimed  by  her  original  owners. 

Sprague,  J.,  decided  that  R.  G.  B.  lost  whatever  he  possessed  in  the  cargo  by 
reason  of  his  falsely  documenting  other  goods  as  his  own  to  deceive  belligerent  cruisers 
and  that  the  vessel  should  be  restored  upon  the  authority  of  the  Act  of  1800,  Chap.  14, 
sees.  1,  2.  U.  S.  Stats,  at  Large,  16,  which  provides  that  when  a  merchant  vessel, 
belonging  to  any  person  under  the  protection  of  the  United  States,  shall  have  been 
taken  by  a  public  enemy,  and  shall  be  recaptured  by  a  public  armed  vessel  of  the 
United  States,  such  vessel  not  having  been  condemned  by  competent  authority  before 
the  recapture,  the  same  sliall  be  restored  to  the  former  owners  upon  payment  of  one- 
eighth  part  of  the  true  value,  for  and  in  lieu  of  salvage.     The  court  also  says  : 

"  The  second  objection  to  tliis  claim  is  also  fatal.  There  is  no  doubt  that  this  vessel 
was  the  property  of  Maxwell  and  others,  until  her  capture  by  a  Confederate  privateer. 
But  it  is  contended  that  she  has  since  been  condemned  and  sold  by  a  prize  court  in 
Charleston,  S.  C,  and  the  purcliasers  conveyed  her  to  the  claimant  Bushby,  If  this 
were  so,  of  which  there  is  no  sufficient  proof,  still,  such  proceedings  would  not  divest 
the  title  of  the  original  owner.     In  the  case  of  The  Amy  Warwick  [2  Sprague  123], 


CHAP.  I.]  TNDERHILL    V.    HERNANDEZ.  63 

defendant,  entered  upon  the  verdict  of  a  jury,  pursuant  to  the  direction 
of  the  trial  judge.  The  suit  was  for  false  imprisonment  and  assault 
and  battery  of  the  plaintiff,  committed  by  the  defendant  at  the  city  of 
Bolivar,  Venezuela.  The  acts  complained  of  consisted  in  the  deten- 
tion of  the  plaintiff  at  his  own  residence  in  the  City  of  Bolivar,  under 
a  guard  of  soldiers  stationed  near  the  house,  from  August  13  to 
October  15,  1892,  by  the  authority  of  the  defendant,  during  which 
time  the  plaintiff  was  not  permitted  to  leave  the  house  without  an 
escort  of  soldiers,  and  was  several  times  refused  a  passport  to  leave 
the  city,  for  which  he  made  application  to  the  defendant.  During  this 
period  the  defendant  was  in  command  of  the  city  as  a  nailitary  officer. 
A  revolution  had  been  organized  against  the  government  of  Venezuela, 
and  an  army  had  been  mustered  against  the  adherents  of  the  recent 
president,  whose  term  of  office  had  expired,  and  who,  it  was  claimed 
by  the  revolutionists,  no  longer  represented  the  legitimate  government. 
The  principal  parties  to  this  conflict  were  those  who  recognized 
Palacio  as  their  chief,  and  those  who  followed  the  leadership  of 
Crespo.  The  defendant  belonged  to  the  revolutionary  party  and 
commanded  its  forces  in  the  vicinity  of  Bolivar.  Early  in  August  an 
engagement  took  place  between  the  forces  of  the  two  parties  near 
Bolivar  ;  the  revolutionists  prevailed,  and  on  August  13,  the  defendant 
entered  Bolivar  at  the  head  of  his  forces  and  assumed  command  of  the 
city.  From  that  time  until  the  plaintiff  was  permitted  to  leave 
Bolivar  the  defendant  was  the  civil  and  military  chief.  Early  in 
October  the  revolutionary  party  prevailed  generally,  and  took  posses- 

tliis  Court  held   that  treating  the  Confederates  in  some  respects  as  belligerents  was 
not  an  abandonment  of  sovereign  rights,  and  by  no  means  precluded  us  from  treating 
them  iu  other  respects  as  rebels.     Most  assuredly  I  shall  not  recognize  the  Southern  A«u»ut<-«  »f  c 
Confederates  as  a  nation,  or  as  having  a  government  competent  to  establish   prize  ^US luZtX  C 
courts.     No  proceedings  of  any  such  supposed  tribunals  can  have  any  validity  here,    fr     '    *" 
and  a  sale  under  them  would  convey  no  title  to  the  purchaser,  nor  would  it  confer 
upon  iiim  any  right  to  give  a  title  to  others.     But  it  is  argued  that,  under  the  Queen's 
proclamation,  recognizing  tiie  Confederates  as  belligerents,  a  British  court  would  hold 
a  sale  to  be  valid.     What  the  decisiim  of  a  British  court  might  be  upon  that  question 
we  do  not  know,  it  never  having  been  there  litigated.     But  such  a  decision,  if  made, 
would  be  no  more  binding  upon  our  courts  than  the  political  views  of  the  British  gov- 
ernment would  be  upon  the  President  or  the  Congress." 

But    generally  de  facto  judgments    are  valid   as  in  the    case  of   a  Spanish    judg-  yuiyc>»a»>4^ 
ment  made  in   Louisiana  after  the  cession  but  before  delivery  of  possession  to  tiie  j^  U^ok^ha^ 
United  States  ;  for  it  was  the  judgment  of  a  competent  Spanish  tribunal,  having  juris-     jv^  ^   ^^ 
diction  of  the  case,  and  rendered  whilst  the  country,  though  cedeil,  was,  tfc  /«rfo,  in 
the  possession  of  Spain,  and  subject  to  Spanisli  laws,  and  such  judgments,  so  far  as 
they  affect  the  private  rights  of  the  parties  thereto,  must  be  deemed  valid,  Keenc  v. 
McDonouqh,  1834,  8  Pet.  308  ;  Trevino  v.  Fernaiuhz,  1855,  13  Tex.  630,  GC2.  6G6;  Daniel 
V.  Hutchinson,  1893,  83  Tex.  51,  affirming  the  validity  of  judgments  of  military  courts 
established  in  Texas  during  the  reconstruction  period. —  Ed. 


64  STATES.  [part  I. 

sion  of  the  capital  of  Venezuela,  and  on  the  26th  day  of  October, 
1892,  the  Crespo  government,  so-called,  was  foxmally  recognized  as  the 
legitimate  government  of  Venezuela  by  the  government  of  tlie  United 
States,  pursuant  to  instructions  from  the  State  department  to  our 
minister  to  recognize  the  new  government,  provided  it  was  accepted 
by  the  people  in  possession  of  the  power  of  the  nation,  and  fully 
establislied.     Foreign  Relations  of  the  United  States  (1892),  p.  635. 

The  plaintiff  was  a  citizen  of  the  United  States,  who  had  constructed 
a  waterworks  system  for  the  city  of  Bolivar,  under  a  contract  with 
the  government,  and  was  engaged  in  supplying  the  place  with  water. 
He  also  carried  on  a  machinery  repair  business.  The  evidence  upon 
the  trial  indicated  that  the  purpose  of  the  defendant  in  his  treatment 
of  the  plaintiff  was  to  coerce  the  plaintiff  to  operate  his  waterworks 
and  his  repair  works  for  the  benefit  of  tlie  community  and  the  revolu- 
tionary forces  ;  it  was  not  sufficient  to  have  warranted  a  finding  by  the 
jury  that  the  defendant  was  actuated  b}'  malice  or  any  personal  or 
private  motive.  The  trial  judge  ruled,  at  the  request  of  the  defendant, 
that  upon  these  facts  the  plaintiff  was  not  entitled  to  recover,  and 
directed  a  verdict  for  the  defendant  against  the  exception  of  the 
plaintiff. 

The  important  question  presented  by  the  assignments  of  error 
arises  upon  the  exception  to  the  direction  of  a  verdict  for  the 
defendant.  This  ruling  proceeded  upon  the  ground  that  because  the 
acts  of  the  defendant  were  those  of  a  military  commander,  represent- 
ing a  de  facto  government  in  the  prosecution  of  a  war,  he  was  not 
civilly  responsible  therefor. 

Considerations  of  comit}',  and  of  the  highest  expediency,  require 
that  the  conduct  of  states,  whether  in  the  transactions  with  other 
States  or  with  individuals,  their  own  citizens  or  foreign  citizens,  should 
not  be  called  in  question  by  the  legal  tribunals  of  another  jurisdiction. 
The  citizens  of  a  state  have  an  adequate  redress  for  any  grievance  at 
its  hand  by  an  appeal  to  the  courts  or  the  other  departments  of  their 
own  government.  Foreign  citizens  can  rely  upon  the  intervention  of 
their  respective  governments  to  redress  their  wrongs,  even  by  a  resort, 
if  necessary,  to  the  arbitrament  of  war.  It  would  be  not  only  offensive 
and  unnecessary,  but  it  would  imperil  the  amicable  relations  between 
governments,  and  vex  the  peace  of  nations,  to  permit  the  sovereign 
acts  or  political  transactions  of  states  to  be  subjected  to  the  examina- 
tion of  the  legal  tribunals  of  other  states.  Influenced  by  these 
reasons,  and  because  the  acts  of  the  official  representatives  of  the 
state  are  those  of  the  state  itself,  when  exercised  within  the  scope  of 
their  delegated  powers,  courts  and  publicists  have  recognized  the 
immunity  of  public  agents  from  suits  brought  in  foreign  tribunals  for 


CHAP.  I.]  UXDERHILL    V.    HERNANDEZ.  65 

acts  done  within  their  own  states  in  the  exercise  of  the  sovereignty 
thereof.  In  Moondalay  v.  Morton^  1  Bro.  Ch.,  4G9,  471,  the  Master  of 
the  Rolls,  while  retaining  jurisdiction  of  a  suit,  which  involved  the 
private  transactions  of  the  East  India  Company,  said:  "They  have 
rights  as  a  sovereign  power,  they  have  also  duties  as  individuals ;  if 
they  enter  into  bonds  in  India,  the  sums  secured  may  be  recovered 
here."  "  I  admit  that  no  suit  will  lie  in  this  court  against  a  sovereign 
power  for  anything  done  in  that  capacity."  In  The  Nabob  of  Arcot  v. 
East  India  Co.,  4  Bro.  Ch.,  180,  the  answer  to  a  bill  in  equity  alleged 
that  all  the  transactions  mentioned  in  the  bill  were  of  a  political 
nature  and  matters  of  state ;  and  the  court  dismissed  the  suit  upon 
that  ground.  In  The  Duke  of  Brunsicick  v.  The  King  of  Hanover,  6 
Beavan,  1,  the  Master  of  the  Rolls  concluded  an  elaborate  discussion 
of  the  liability  of  the  defendant  to  a  suit  in  chancery  with  the  opinion 
that  the  King  of  Hanover,  although  a  subject  of  Great  Britain,  was 
exempt  from  all  liability  to  be  sued  in  the  courts  of  this  countr}-  for 
any  acts  done  by  him  as  King  of  Hanover.  Upon  an  appeal  from  his 
judgment,  dismissing  the  cause  to  the  House  of  Lords,  that  tribunal 
decided  that  the  defendant,  notwithstanding  he  was  a  British  subject, 
and  was  in  England  exercising  his  rights  as  such  when  sued,  could  not 
be  made  to  account  in  the  Court  of  Chancery  for  acts  of  state,  whether 
right  or  wrong,  done  by  him  abroad  in  virtue  of  his  authority  as 
sovereign.  The  decision  was  put  not  upon  the  personal  immunity  of 
the  sovereign  from  suit,  but  upon  the  principle  that  no  court  in 
England  could  sit  in  judgment  upon  the  act  of  a  sovereign  effected  by 
virtue  of  his  sovereign  authority  abroad.  The  Lord  Chancellor  said 
that  "a  foreign  sovereign,  coming  into  this  country,  cannot  be  made 
responsible  here  for  an  act  done  in  his  sovereign  character  in  his  own 
country,"  and  that  '*  the  courts  of  this  country  cannot  sit  in  judgment 
upon  an  act  of  a  sovereign,  effected  by  virtue  of  his  sovereign 
authority  abroad,  an  act  not  done  as  a  British  subject,  but  supposed  to 
be  done  in  the  exercise  of  his  authority,  vested  in  him  as  sovereign." 
The  Duke  of  Bnaisirick  v.  The  King  of  Hanover,  2  H.  L.  Cas.  1,  16. 
In  Hatch  v.  Baez,  7  Hun,  596,  599,  600,  the  New  York  Supreme  Court 
decided  that  an  action  could  not  be  maintained  in  the  courts  of  the 
State  against  the  former  president  of  the  Dominican  Kepublic  for  acts 
done  by  him  in  his  official  capacity,  although  he  had  ceased  to  be 
president  when  the  suit  was  brought.  The  court  said:  "We  think 
that,  by  the  universal  comity  of  nations  and  the  established  rules  of 
international  law,  tlie  courts  of  one  country  are  bound  to  abstain  from 
sitting  in  judgment  on  the  acts  of  another  government  done  within  its 
own  territory.  *  *  *  To  make  himself  amenable  to  a  foreign  jurisdic- 
tion for  such  acts,  would  be  a  direct  assault  upon  the  sovereignty  and 

5 


66  STATES.  [part  T. 

independence  of  his  country.  *  *  *  The  fact  that  the  defendant  has 
ceased  to  be  president  of  St.  Domingo  does  not  destroy  his  immunity. 
That  springs  from  the  capacity  in  which  the  acts  were  done,  and 
protects  the  individual  who  did  them,  because  they  emanate  from  a 
foreign  and  friendly  government."  The  law  offic^ers  of  the  United 
States  have  uniformly  advised  the  executive  department  that  individ- 
uals are  not  answerable  in  foreign  tribunals  for  acts  done  in  their  own 
country  in  behalf  of  their  government  by  virtue  of  their  official 
authority. 

In  1794  one  Collot,  lately  the  French  Governor  of  Guadaloupe,  was 
arrested  in  this  country  in  an  action  brought  against  him  for  the  seizure 
and  condemnation  of  a  vessel.  The  matter  having  been  brought  to 
the  attention  of  our  Government,  it  was  referred  to  the  Attorney 
General,  and  he  advised  that  the  defendant  being  subject  to  process 
the  Government  could  not  then  intervene,  but  added  his  opinion,  "  if 
the  seizure  of  the  vessel  is  admitted  to  have  been  an  official  act,  done 
by  the  defendant  by  virtue,  or  under  color,  of  the  powers  vested  in 
him  as  governor,  that  it  will  of  itself  be  a  sufficient  answer  to  the 
plaintiff's  action ;  that  the  defendant  ought  not  to  answer  in  our 
courts  for  any  mere  irregularity  in  the  exercise  of  his  powers  ;  and 
that  the  extent  of  his  authority  can,  with  propriety  or  convenience,  be 
determined  only  by  the  constituted  authorities  of  his  own  nation." 
Suits  against  Foreigners,  1  Opin.  Att.  Gen.  45,  46.  In  1797,  in  the 
case  of  Sinclair,  the  Attorney  General  expressed  the  opinion  "  that  a 
person  acting  under  a  commission  from  the  sovereign  of  a  foreign 
nation  is  not  amenable  for  what  he  does  in  pursuance  of  his  commis- 
sion, to  any  judicial  tribunal  of  the  United  States."  Actions  against 
Foreigners,  1  Opin.  Att.  Gen.,  81.  In  1871,  in  the  case  of  the 
Pacific  Steamship  Company,  the  Attorney  General  advised  the  Secretary 
of  State  as  follows  :  "  It  has  often  been  laid  down  that,  before  a  citizen 
of  one  country  is  entitled  to  the  aid  of  his  government  in  obtaining 
redress  for  wrongs  done  him  by  another  government,  he  must  have 
sought  redress  in  vain  from  the  tribunals  of  the  offending  power.  The 
object  of  this  rule  plainly  is  to  give  the  offending  government  an 
opportunity  of  doing  justice  to  the  injured  party  in  its  own  regular 
way,  and  of  thus  avoiding  all  occasion  for  international  discussion." 
New  Granadian  Passenger  Tax,  13  Opin.  Att.  Gen.  547,  550. 
In  1872  in  the  Case  of  the  Steamer  Tipitapa,  the  Attorney  General 
advised  the  Secretary  of  State,  in  a  case  where  an  officer  with  a  party 
of  armed  men,  acting  under  the  order  of  the  judicial  officer  of  the 
port  of  Granada,  had  seized  an  Amorican  vessel  at  that  port,  the 
seizure  having  been  made  for  enforcing  a  suj^posed  legal  right,  that 
the   '^  Government  ought  not  to  make  reclamation  in   behalf  of    the 


CHAP.  I.]  TJNDERHILL    V.    HERNANDEZ.  G7 

owner,  as  it  is  presumable  that,  if  the  proceedings  were  illegal,  the 
judicial  tribunals  of  Nicaragua  will  afford  redress."  13  Opin.  Att. 
Gen.;  554. 

Conspicuous  among  the  acts  which  are  sheltered  by  this  principle  of 
international  law  are  those  of  military  officers  in  command  of  the 
armed  forces  of  the  state.  According  to  one  of  the  most  recent  com- 
mentators upon  international  law  (Hall's  Treatise  on  International 
Law,  3d  ed.,  §  102),  officers  in.  command  of  armed,  forces  of  the  state, 
and  their  subordinates  and  soldiers,  are  not  in  any  case  amenable  to 
the  civil  or  criminal  laws  of  a  foreign  state,  in  respect  to  acts  done 
in  their  capacity  as  agents  for  which  they  Avould  be  punishable  or 
civilly  responsible  if  done  in  their  private  capacity.  This  doctrine 
was  sanctioned  by  our  Government  in  1841,  in  the  case  of  McLeod, 
w^ho  was  under  indictment  for  murder  in  a  State  court  of  Xew  York. 
He  had  been  engaged  as  a  member  of  the  Colonial  forces  in  repelling 
an  attack  made  on  Canada  by  an  armed  force  from  the  United  States, 
and  had  assisted  in  the  destruction  of  a  vessel  moored  on  the  American 
shore  of  the  Niagara  River,  during  which  an  American  citizen  was 
killed.  The  British  Government,  through  its  minister  at  Washington, 
demanded  his  release  upon  the  ground  that  the  destruction  of  the 
vessel  was  a  public  act  of  persons  in  her  Majesty's  service,  obeying 
orders  of  the  superior  authorities,  and,  therefore,  according  to  the 
usages  of  nations,  could  only  be  the  subject  of  discussion  between  the 
two  governments.  Mr.  Webster,  then  Secretary  of  State,  acceded  to 
this  view,  stating  that  "  the  Government  of  the  United  States  enter- 
tains no  doubt  that,  after  this  avowal  of  the  transaction  as  a  public 
transaction,  authorized  and  undertaken  by  the  British  authorities, 
individuals  concerned  in  it  ought  not,  by  the  principles  of  public  law 
and  the  general  usuage  of  civilized  states,  to  be  holden  personally 
responsible  in  the  ordinary  tribunals  of  law  for  their  participation  in 
it."  ^  The  courts  of  New  York  refused  to  release  McLeod  at  the 
intervention  of  the  General  Government,  and  he  was  tried  and 
acquitted  on  proof  of  an  alibi.  The  episode  led  to  the  enactment  by 
Congress   on   August    29,  1842  (5    Stat.   539,   c.    257,  sec.  1),  of  the 

1  Extract  from  a  letter  written  by  Daniel  Webster,  while  Secretary  of  State, 
under  the  direction  of  William  Henry  Harrison,  President,  dated  at  the  Department 
of  State,  Washington,  April  24,  1841,  addressed  to  Mr.  H.  S.  Fox,  Envoy  Extraor- 
dinary and  Minister  Plenipotentiary  of  her  Britannic  Majesty,  in  reply  to  a  letter 
received  from  Mr.  Fox,  dated  March  12,  1841,  demanding  "from  the  Government  of 
tlie  United  States,  formally,  in  the  name  of  the  British  Government,  the  immediate 
release  of  Mr.  Alexander  McLeod"  from  arrest.  The  works  of  Daniel  Webster,  vol. 
5,  p.  '253.  The  history  of  this  case  will  be  found  in  Mr.  Webster's  speech  of  the  6th 
and  7th  of  April,  1846,  in  vindication  of  the  treaty  of  Washington.  The  works  of 
Daniel  Webster,  vol.  5,  p.  73. 


68  STATES.  [part  I. 

provision,  now  section  753,  United  States  Revised  Statutes,  by  Avhich 
the  courts  of  the  United  States  are  authorized  to  issue  a  writ  of  habeas 
coijyus  where  a  person,  "  being  a  subject  or  citizen  of  a  foreign  state, 
and  domiciled  therein,  is  in  custody  for  an  act  done  or  omitted  under 
any  alleged  right,  title,  authority,  privilege,  protection  or  exemp- 
tion claimed  under  the  commission,  or  order,  or  sanction  of  any  foreign 
state,  or  under  color  thereof,  tlie  validity  and  effect  whereof  depend 
upon  the  law  of  nations. 

Upon  principle  it  cannot  be  important  whether  the  acts  of  military 
authorities,  Avhen  called  in  question,  are  done  by  the  authority  of  a  de 
jure  or  titular  or  of  a  de  facto  government.  In  either  case,  if  tliey  are 
done  in  the  legitimate  exercise  of  belligerent  powers,  they  are  not 
ordinarily  attended  with  civil  responsibility.  This  principle  has  been 
recognized  b}^  the  Supreme  Court  of  the  United  States  in  cases  in  which 
the  civil  liability  of  Confederate  soldiers  for  acts  done  as  members  of  the 
insurgent  forces,  during  the  Eebellion,  was  under  consideration.  Ford 
V.  Surget,  97  U.  S.,  594;  Freeland  v.  Williams,  331  U.  S.,  405.  As 
was  decided  in  WUIiams  v,  Bruffij,  96  U.  S.,  176, 185,  the  government 
of  the  Confederate  States  was  a  de  facto  government  of  an  inferior  class. 
"  It  never  represented  the  nation,  it  never  expelled  the  public  authori- 
ties from  the  country,  it  never  entered  into  any  treaties,  nor  was  it 
ever  recognized  as  that  of  an  independent  power.'' 

Ford  V.  Surget  was  an  action  brought  by  the  plaintiff  to  recover  the 
value  of  a  certain  cotton  destroyed  during  the  war  of  the  rebellion  in 
the  State  of  Mississippi ;  and  the  court  held  that  the  defence  that  it  was 
destroyed  by  the  defendant,  acting  under  the  orders  of  the  military 
authorities  of  the  Confederate  States,  was  a  good  justification. 
Freeland  v.  Williams  Avas  a  bill  in  equity  to  invalidate  a  judgment 
of  the  court  of  the  State  of  AVest  Virginia,  obtained  against  the 
defendant  for  a  tort  committed  by  liim  as  a  soldier  of  the  Confederate 
Army.  One  of  the  questions  discussed  was  whether  the  judgment  was 
void,  inasmuch  as  it  proceeded  on  the  ground  that  the  defendant  was 
civilly  responsible  as  a  trespasser  for  an  act  done  by  him  as  a  Confed- 
erate soldier  in  accordance  with  the  usages  of  civilized  war.  In  the 
prevailing  opinion,  at  p.  416,  tlie  court  said:  "The  case  as  it  is  now 
presented  to  us  shows  that  the  trespass  for  which  the  original  judgment 
was  rendered  was  of  that  character  ;  and  it  is  argued  with  much  force 
that  the  court  which  rendered  that  judgment  had  no  jurisdiction  in  the 
case,  or,  at  all  events,  had  no  jurisdiction  to  render  such  a  judgment, 
and  that  it  was  therefore  void.  It  follows  from  this  view  of  the 
subject  that  the  court  in  which  it  was  originally  rendered  had  no 
jurisdiction  to  set  it  aside  or  annul  it  without  the  aid  of  the  constitu- 
tional provision  of    the  State    of   West  Virginia,  and    that,  on    that 


CHAP.  I.]  UNDERHILL   V.    HERNANDEZ.  69 

ground  alone,  the  decree  that  we  are  called  upon  to  review  must  be 
affirmed.  In  this  view  of  the  subject  some  of  the  judges  of  this 
court  concur."  Again,  the  court  said,  at  p.  418:  "If  it  be  true  that, 
when  the  original  act  was  presented  to  the  Circuit  Court  of  Preston 
County,  the  thing  complained  of  was  found  to  be  an  act  in  accord- 
ance with  the  usages  of  civilized  war,  during  the  existence  of  a  war 
flagrant  in  that  part  of  the  country,  the  court  should  have  proceeded 
no  further,  and  its  subsequent  proceedings  may  be  held  to  have 
been  without  the  authority  of  law.  While  it  is  not  necessary  to  hold 
that  the  judgment,  as  presented  by  the  record,  is  absolutely  void, 
it  may  be  conceded  that  a  court  of  equity,  in  a  proper  case,  can  pre- 
vent the  enforcement  of  it."  In  a  dissenting  opinion  Mr.  Justice 
Harlan  insisted  that  the  government  was  not  void,  but  conceded 
that  the  complainant  was  not  civilly  responsible  if  his  act  was  one 
of  legitimate  warfare  as  a  soldier  in  the  Confederate  Army. 

The  acts  of  the  defendant  as  a  military  commander  of  the  revo- 
lutionary forces  in  the  civil  war  in  Venezuela,  although  performed 
before  the  revolution  became  successful,  are  sheltered  by  the  same 
immunities  that  would  surround  them  if  they  had  been  performed  sub- 
sequently. The  organization  of  which  he  was  a  part  represented  that 
a  kind  of  de  facto  government  which  is  described  in  Williams  v.  Bruffy, 
sjqjra,  p.  186:  "Such  as  .exists  where  a  portion  of  the  inhabitants  of  a 
country  have  separated  themselves  from  the  parent  state  and  estab- 
lished an  independent  government.  The  validity  of  its  acts,  both 
against  the  parent  state  and  its  citizens  or  subjects,  depends  en- 
tirely upon  its  ultimate  success.  If  it  fail  to  establish  itself  per- 
manently, all  such  acts  perish  with  it.  If  it  succeed,  and  becomes 
recognized,  its  acts  from  the  commencement  pf  its  existence  are  upheld 
as  those  of  an  independent  nation."  By  its  success  the  revolutionary 
party  vindicated  its  claim  to  recognition  as  the  legitimate  government 
of  Venezuela,  and  achieved  a  justification  in  the  estimation  of  foreign 
governments  and  their  legal  tribunals  for  the  acts  of  its  military 
forces,  as  complete  and  ample  as  though  those  forces  had  been  employed 
by  any  sovereign  power.  After  the  recognition  of  the  new  government 
by  the  United  States,  the  courts  of  this  country  must  accord  to  those 
who  throughout  the  progress  of  the  civil  war  acted  as  the  agents  of  the 
people  of  Venezuela  the  position  of  oflficial  representatives  of  the  state. 
The  act  of  recognition  by  our  Government  neither  added  to  nor 
detracted  from  the  responsibility  of  the  people  of  Venezuela  for  any 
prior  injuries  which  citizens  of  the  United  States  may  have  suffered 
on  her  soil  from  the  hands  of  her  de  facto  authorities,  but  these 
responsibilities,  in  our  judgment,  are  to  be  adjudicated  by  the  two 
governments  by  international  action,   according  to   the   principles  of 


70  STATES.  [part  I. 

international  law  applicable  to  such  cases.  For  these  reasons  we  con- 
clude that  the  acts  of  the  defendant  were  the  acts  of  the  government 
of  Venezuela,  and  as  such  are  not  properly  the  subject  of  adjudi- 
cation in  the  courts  of  another  government. 

The  various  requests  made  to  the  court  on  behalf  of  the  plaintiff 
for  instructions  to  the  jury  either  involve  propositions  of  law,  which, 
according  to  the  views  we  have  expressed,  were  px-operly  refused,  or 
propositions  for  the  submission  of  questions  of  fact,  as  to  which  there 
was  no  conflict  of  evidence,  and  which  therefore  the  trial  judge  was 
not  required  to  submit  to  the  jury.  If  the  trial  judge  in  directing 
a  verdict  for  the  defendant  enunciated  a  rule  which  to  its  full  extent 
may  not  obtain,  because  it  implies  that  the  defendant  would  not  be 
civilly  responsible,  even  in  a  court  of  Venezuela,  for  any  act  done 
by  him  as  a  military  commander,  his  disposition  of  the  case  was 
nevertheless  proper,  and  the  result  is  not  affected  by  his  expression 
of  an  erroneous  opinion. 

The  judgment  is  affirmed.^ 


Section  3.  —  Acquisition  of  Terkitokv. 


HARCOURT  V.   GAILLARD. 

Supreme  Court  of  the  United  States,  1827. 

(12  Wkeaton,  523.) 

A  British  grant  of  land  within  the  limits  of  the  old  Thirteen 
Colonies  was  made  to  ancestor  of  the  plaintiff  on  Jan.  24, 1777,  and  the 
question  in  issue  was  whether  the  title  to  the  land  in  controversy  was 
in  the  British  government  or  not  at  the  date  of  the  grant. 

Mr.  Justice  Johnson  delivered  the  opinion  of  the  court ;  *  *  * 
"  But  this  is  not  the  material  fact  m  the  case ;  it  is  this,  that  this 
limit  was  claimed  and  asserted  by  both  of  those  states  in  the  Declara- 
tion of  Independence,  and  the  right  to  it  was  established  by  the 
most  solemn  of  all  international  acts,  the  treaty  of  peace.  It  has 
never  been  admitted  by  the  United  States,  that  they  acquired  any- 
thing by  way  of  cession  from  Great  Britain  by  that  treaty.  It  has 
been  viewed  only  as  a  recognition  of  pre-existing  rights,  and  on  that 
principle  the  soil  and  sovereignty,  within  their  acknowledged  limits, 
were  as  much  theirs  at  the  declaration  of  independence  as  at  this 

1  Affirmed  Underhill  v.  Hernandez,  1897,  168  U.  S.  250.  This  case  sliould  be  con- 
siiltod  in  connection  with  immunity  of  sovereigns  from  suit,  extraterritorial  acts  by 
order  of  State,  infra.  —  Ed. 


CHAP.  I.]  JOHNSON    V.    M'INTOSH.  71 

hour.  By  reference  to  the  treaty,  it  ^\ill  be  found  that  it  amounts 
to  a  simj)le  recognition  of  tlie  independence  and  the  hmits  of  the 
United  States,  witliout  any  language  purporting  a  cession  or  reUn- 
quisliment  of  right  on  tlie  i)art  of  Great  Britain.  In  tlie  hist  article 
of  the  treaty  of  Ghent  will  be  found  a  provision  respecting  grants  of 
land  made  in  the  islands  then  in  dispute  between  the  two  states, 
which  affords  an  illustration  of  this  doctrine.  By  that  article,  a 
stipulation  is  made  m  favor  of  grants  before  the  war,  but  none  for 
those  which  were  made  during  the  war.  And  such  is  unquestion- 
ably the  law  of  nations.  War  is  a  suit  prosecuted  by  the  sword ; 
and  where  the  question  to  be  decided  is  one  of  original  claim  to  ter- 
ritory, grants  of  soil  made  flagrante  hello  by  the  party  that  fails 
can  only  derive  validity  from  treaty  stipulations."  ^ 


JOHNSON  AND  GRAHAM'S  LESSEE  v.  WILLIAM  M'INTOSH. 
Supreme  Court  of  the  United  States,  1823. 

(8  Wheaton,  543.) 

Judgment  —  Marshall,  C.  J.'^  — 

"  The  plaintiffs  in  this  cause  claim  the  land,  in  their  declaration 
mentioned,  under  two  grants,  purporting  to  be  made,  the  first  in 
1773,  and  the  last  in  1775,  by  the  chiefs  of  certain  Indian  tribes, 
constituting  the  Illinois  and  the  Praukeshaw  nations  ;  and  the  ques- 
tion is,  whether  this  title  can  be  recognized  in  the  courts  of  the 
United  States. 

"  The  facts,  as  stated  in  the  case  argued,  show  the  authority  of  the 
chiefs  who  executed  this  conveyance  so  far  as  it  could  be  given  by 
their  own  people ;  and  likewise  show,  that  the  particular  tribes  for 
whom  these  chiefs  acted  were  in  rightful  possession  of  the  land  they 
sold.     The  inquiry,  therefore,  is,  in  a  great  measure,  confined  to  the 

1  In  More  v.  Steinback,  1887,  127  U.  S.  70,  80-81,  it  was  held  that  only  politi- 
cal jurisdiction  and  sovereignty  passed  liy  cession  and  that  to  validate  claim  to  a 
grant  of  land  from  the  public  domain  under  Mexicans  in  California,  delivery  of  pos- 
session by  Mexican  officials  was  necessary  to  complete  title;  that  Mexican  jurisdiction 
over  California  terminated  July  7,  181t3,  and  tliat  courts  recognize  that  date  fixed  by 
the  political  party  for  termination  of  Mexican  authority  ;  that  the  lan<l  laws  do  not  re- 
main in  force  after  cession  of  territory  and  as  in  tlie  case  witli  laws  of  a  non-political 
nature ;  that  no  proceedings  affecting  the  rights  of  the  new  sovereign  over  public 
property  can  be  taken  except  in  pursuance  of  his  authority ;  that  an  act  of  (^on- 
gress  (as  Act  of  March  3,  1851)  requiring  the  confirmation  of  all  perfected  as  well  as 
imperfect  claims  to  public  land  was  constitutional.  —  Eu. 

■^  Only  so  mucii  of  the  decision  is  given  as  applies  to  discovery.  — Ed. 


72  STATES.  [part  I. 

power  of  Indians  to  give,  and  of  private  individuals  to  receive,  a 
title  which  can  be  sustained  in  the  courts  of  this  country. 

"  As  the  rights  of  society,  to  prescribe  those  rules  by  which  prop- 
erty may  be  acquired  and  preserved  is  not,  and  cannot  be,  drawn 
into  question ;  as  the  title  to  lands,  especially,  is  and  must  be 
admitted  to  depend  entirely  upon  the  law  of  the  nation  in  which 
they  lie,  it  will  be  necessary,  in  pursuing  this  inquiry,  to  examine, 
not  singly  those  principles  of  abstract  justice,  which  the  Creator 
of  all  things  has  impressed  on  the  mind  of  His  creature  man,  and 
which  are  admitted  to  regulate,  in  a  great  degree,  the  rights  of 
civilized  nations,  whose  perfect  independence  is  acknowledged  ;  but 
those  principles  also  which  our  own  government  has  adopted  in  the 
particular  case,  and  given  us  as  the  rule  for  our  decision. 

"On  the  discovery  of  this  immense  continent  the  nations  of 
Europe  were  eager  to  appropriate  to  themselves  so  much  of  it  as 
they  could  respectively  acquire.  Its  vast  extent  offered  an  ample 
field  to  the  ambition  and  enterprise  of  all ;  and  the  character  and 
religion  of  its  inhabitants  afforded  an  apology  for  considering  them 
as  a  people  over  whom  the  superior  genius  of  Europe  might  claim 
an  ascendency.  The  potentates  of  the  old  world  found  no  difficulty 
in  convincing  themselves  that  they  made  ample  compensation  to 
the  inhabitants  of  the  new,  by  bestowing  on  them  civilization  and 
Christianity,  in  exchange  for  unlimited  independence.  But,  as  they 
were  all  in  pursuit  of  nearly  the  same  object,  it  was  necessary,  in 
order  to  avoid  conflicting  settlements,  and  consequent  war  with 
each  other,  to  establish  a  principle  which  all  should  acknowledge  as 
the  law  by  which  the  rights  of  acquisition,  which  they  all  asserted, 
should  be  regulated  as  between  themselves.  This  principle  was,  that 
discovery  gave  title  to  the  government  by  whose  subjects,  or  by 
whose  authority,  it  was  made,  against  all  other  European  govern- 
ments, which  title  might  be  consummated  by  possession. 

"  The  exclusion  of  all  other  Europeans  necessarily  gave  to  the 
nation  making  the  discovery  the  sole  right  of  acquiring  the  soil 
from  tlie  natives,  and  establishing  settlements  upon  it.  It  was  a 
right  with  which  no  Europeans  could  interfere. 

"  It  was  a  light  which  all  asserted  for  themselves,  and  to  the 
assertion  of  which,  by  others,  all  assented. 

"  Those  relations  which  were  to  exist  betAveen  the  discoverer  and 
the  natives  were  to  be  regulated  by  themselves.  The  rights  thus 
acquired  being  exclusive,  no  other  power  could  interpose  between 
them. 

"On  the  establishment  of  these  relations,  the  rights  of  the  original 
inhabitants  were,  in  no    instance,   entirely   disregarded,  but  were 

I  ■  I  •      ,     / 


CHAP.  I.]  JOHNSON    V.    M'INTOSH.  73 

necessarily,  to  a  considerable  extent,  impaired.  They  were  admitted 
to  be  the  rightful  occupants  of  the  soil,  with  a  legal  as  well  as  just 
claim  to  retain  possession  of  it,  and  to  use  it  according  to  their  own 
discretion;  but  their  rights  to  complete  sovereignty,  as  indepen- 
dent nations,  were  necessarily  diminished  and  their  power  to  dispose 
of  the  soil  at  their  own  will,  to  whomsoever  they  pleased,  was 
denied  by  the  original  fundamental  princij)le,  that  discovery  gave 
exclusive  title  to  those  who  made  it. 

"  While  the  different  nations  of  Europe  respected  the  right  of  the 
natives,  as  occupants,  they  asserted  tlie  ultimate  dominion  to  be  in 
themselves ;  and  claimed  and  exercised,  as  a  consequence  of  this 
ultimate  dominion,  a  power  to  grant  the  soil,  while  yet  in  posses- 
sion of  the  natives.  These  grants  have  been  understood  by  all  to 
convey  a  title  to  the  grantees,  subject  only  to  the  Indian  right  of 
occupancy. 

"  The  history  of  America,  from  its  discovery  to  the  present  day, 
proves,  we  think,  the  universal  recognition  of  these  principles. 

"  Spain  did  not  rest  her  title  solely  on  the  grant  of  the  Pope.  Her 
discussions  respecting  boundary,  with  France,  with  Great  Britain, 
and  with  the  United  States,  all  show  that  she  placed  it  on  the  rights 
given  by  discovery.  Portugal  sustained  her  claim  to  the  Brazils  by 
the  same  title. 

"  France,  also,  founded  her  title  to  the  vast  territories  she  claimed 
in  America  on  discovery.  However  conciliatory  her  conduct  to  the 
natives  may  have  been,  she  still  asserted  her  right  of  dominion  over 
a  great  extent  of  country  not  actually  settled  by  Frenchmen,  and 
her  exclusive  right  to  acquire  and  dispose  of  the  soil  which  remained 
in  tlie  occupation  of  Indians.  *     *     * 

"  The  States  of  Holland  also  made  acquisitions  in  America,  and 
sustained  their  right  on  the  common  principle  adopted  by  all 
Europe.  *     *     * 

"  Xo  one  of  the  powers  of  Europe  gave  its  full  assent  to  this 
principle  more  unequivocally  than  England.  The  documents  upon 
this  subject  are  ample  and  complete.  So  early  as  the  year  1496,  her 
monarch  granted  a  commission  to  the  Cabots,  to  discover  countries 
then  unknown  to  Chn'stian  people,  and  to  take  possession  of  them 
in  the  name  of  the  king  of  England.  Two  years  afterwards,  Cabot 
proceeded  on  this  voyage,  and  discovered  the  continent  of  Xorth 
America,  along  which  he  sailed  as  far  south  as  Virginia.  To  this 
discovery  the  English  trace  their  title. 

"  In  this  first  effort  made  by  the  English  government  to  acquire 
territory  on  the  continent,  we  perceive  a  complete  recognition  of  the 
principle  which  has  been  mentioned.     The  right  of  discovery  given 


74  STATES.  [part  I. 

by  this  commission  is  confined  to  countries  '  then  unknown  to  all 
Christian  people  ; '  and  of  these  countries  Cabot  was  empowered  to 
take  possession  in  the  name  of  the  king  of  England,  thus  asserting 
a  right  to  take  possession  notwithstanding  the  occupancy  of  the 
natives,  who  were  heathen,  and,  at  the  same  time,  admitting  any 
prior  title  of  any  Christian  people  who  may  have  made  a  previous 
discovery.  *    *     * 

"  Thus,  all  nations  of  Europe,  who  have  acquired  territory  on  this 
continent,  have  asserted  in  themselves  and  have  recognized  in  others, 
the  exclusive  right  of  the  discoverer  to  appropriate  the  lands  occu- 
pied by  the  Indians,  *    *    * 

"  The  power  now  possessed  by  the  government  of  the  United  States 
to  grant  lands,  resided,  while  we  were  colonies,  in  the  crown,  or  its 
grantees. 

"  The  validity  of  the  titles  given  by  either  has  never  been  questioned 
in  our  courts.  It  has  been  exercised  uniformly  over  territory  in 
possession  of  the  Indians.  The  existence  of  this  power  must  negative 
the  existence  of  any  right  which  may  conflict  with,  and  control  it. 
An  absolute  title  to  lands  cannot  exist,  at  the  same  time,  in  different 
persons,  or  in  different  governments. 

"  An  absolute,  must  be  an  exclusive  title,  or  at  least  a  title  which 
excludes  all  others  not  compatible  with  it.  All  our  institutions  recog- 
nize the  absolute  title  of  the  crown,  subject  only  to  the  Indian  right 
of  occupancy,  and  recognize  the  absolute  title  of  the  crown  to  ex- 
tinguish that  right.  This  is  incompatible  with  an  absolute  and 
complete  title  in  the  Indians."  ^ 

1  See  further  on  the  general  question,  Jones  v.  U.  S-  supra ;  Stockton  v.  Williams, 
1845,  1  Doug.  (Mich.)  546  ;  Montgomery  v.  Ives,  1844,  13  S.  &  M.  (Miss.)  161  ;  Mltchel 
V.  U.  S.,  1835,  9  Pet.  711,  746-761  ;  U.  S.  v.  Fernandez,  1836,  10  Pet.  303;  ShiveJy  r. 
Bowlhif,  1803,  152  U.  S.  1,  15,  50;  Ex  Pane  Ortiz,  1900,  100  Fed.  955. 

For  acquisition  of  territor}-  by  "  alluvium  and  increment,"  The  Anna,  1805,  5  C. 
Rob.  373  ;  by  long  possession  and  prescription,  Rhode  Island  v.  Massachusetts,  1846, 
4  How.  591  ;  Virginia  v.  Tennessee,  1892,  148  U.  S.  503,  522-524,  and  the  authorities 
there  cited. 

For  non-judicial  precedents,  see  the  controversy  between  Gt.  Britain  and  U.  S.  rela- 
tive to  Oregon,  1845-46,  Dana's  VVlieaton,  250-254 ;  Foster's  Am.  Dip.  302-313  ;  the 
Delagoa  Bay  controversy,  1872,  Hall's  Int.  Law,  122;  The  Santa  Lucia  dispute, 
1  Pliillimore,  Int.  Law,  368. 

At  the  present  time  it  is  generally  conceded  that  discovery  alone  is  not  enough  to 
give  title  to  territory ;  it  must  be  followed  by  actual  occupation. 

In  regard  to  tlie  extent  of  tlie  interior  country  to  which  the  occupation  of  the 
seacoast  gives  title,  the  extravagant  claim  was  put  forward  in  some  of  the  earlier 
charters,  granting  lands  in  North  America,  tliat  such  right  extended  from  the  Atlantic 
to  tlie  Pacific  Ocean.  A  more  reasonable  rule  was  laid  down  by  tiie  U.  S.  Commis- 
sioners, appointed  to  settle  tlie  boundary  of  Louisiana,  namely,  "that  when  any  Euro- 
pean nation  takes  possession  of  any  extent  of  seacoast,  that  possession  is  understood 

'     ,       l^    1'^.    f>      , 


CHAP.  I.]  FOSTER   V.    NEILSON.  75 


Section  4.  —  Boundaries. 


FOSTER   &   ELA:M  v.   NEILSON. 
Supreme  Court  of  the  United  States,  1829. 

(2  Peters,  253.) 

This  was  the  case  of  lands  in  the  disputed  territory  between  the 
rivers  Iberville  and  Perdido  granted  to  the  plaintiffs  by  the  Spanish 
governor.  The  defendant  alleged  that  by  the  treaty  of  Ildefonso, 
1800,  this  territory  was  ceded  by  Spain  to-  France,  and  in  1803,  by 
France  to  the  United  States.  And  it  was  a  question  of  the  inter- 
pretation of  the  treaty  of  cession. 

The  court  refused  to  go  into  the  merits  of  the  treaty,  holding 
itself  bound  by  the  decision  of  the  political  department  of  the  govern- 
ment, as  appears  from  the  following  extract  from  the  judgment  of 
Marshall,  C.  J. :  — 

"*  *  *  In  a  controversy  between  two  nations  concerning  national 
boundary,  it  is  scarcely  possible  that  the  courts  of  either  should 
refuse  to  abide  by  the  measures  adopted  by  its  own  government. 

"There  being  no  common  tribunal  to  decide  between  them,  each 
determines  for  itself  ou  its  own  rights,  and  if  they  cannot  adjust  their 
differences  peaceably,  the  right  remains  with  the  strongest.  The 
judiciary  is  not  that  department  of  the  government  to  which  the 
assertion  of  its  interests  against  foreign  powers  is  confided  ;  and  its 
duty  commonly  is  to  decide  upon  individual  rights,  according  to  those 
principles  which  the  political  departments  of  the  nation  have  estab- 
lished. If  the  course  of  the  nation  has  been  a  plain  one,  its  courts 
would  hesitate  to  pronounce  it  erroneous. 

"  We  think,  then,  however  individual  judges  might  construe  the 
treaty  of  St.  Udefonso,  it  is  the  province  of  the  court  to  conform  its 
decisions  to  the  will  of  the  legislature,  if  that  will  has  been  clearly 
expressed.  *  *  * 

"After  these  acts  of  sovereign  power  over  the  territory  in  dispute, 
asserting  the  American  construction  of  the  treaty  by  which  the 
government  claims  it,  to  maintain  the  opposite  construction  in  its 
own  courts  would  certainly  be  an  anomaly  in  the  history  and  practice 
of  nations.     If  those  departments  which  are  intrusted  with  the  foreign 

as  extending  into  the  interior  country,  to  the  source  of  the  rivers  emptying  themselves 
within  that  coast,  to  all  their  branches,  and  the  country  tiiey  cover,  and  to  give  it  a 
right  in  exclusion  of  all  other  nations  to  the  same.  —  Ed. 


76  STATES.  [part  I. 

intercourse  of  the  nation,  which  assert  and  maintain  its  interests 
against  foreign  powers,  have  unequivocally  asserted  its  right  of 
dominion  over  a  country  of  wiiich  it  is  in  possession,  and  which  it 
claims  under  a  treaty  ;  if  the  legislature  has  acted  on  the  construction 
thus  asserted,  it  is  not  in  its  own  courts  that  this  construction  is  to  be 
denied.  A  question  like  this  respecting  the  boundaries  of  nations,  is, 
as  has  been  truly  said,  more  a  political  than  a  legal  question ;  and  in 
its  discussion  the  courts  of  every  country  must  respect  the  pronounced 
will  of  the  legislature."  ^ 


UNITED   STATES  v.  TEXAS. 
Supreme  Court  of  the  United  States,   1891. 

(143  Uniled  States,  621.) 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  Court. 

Tiiis  suit  was  brought  by  original  bill  in  this  court  pursuant  to  the 
act  of  May  2,  1890,  providing  a  temporary  government  for  the  territory 
of  Oklahoma.     The  25th  section  recites  the  existence  of  a  controversy 

1  See  also,  U.  S.  v.  Arredondo,  1832,  6  Pet.  G91 ;  Gracia  v.  Lee,  1838,  12  Pet.  511. 

"  Wlietlier  or  not  Greer  County  is  part  of  the  State  of  Texas  depends  upon  where 
the  northern  boundary  line  of  our  State,  dividing  it  from  Indian  Territory,  should  be 
located.  This  is  a  question  to  be  settled  by  the  political  and  not  the  judicial  depart- 
ment of  our  State  government.  It  is  judicially  known  to  us  that  the  political  authorit}' 
has  always  claimed  tlie  territory  composing  Greer  County  as  part  of  the  domain  of  our 
State,  and  has  exercised  acts  of  control  over  it ;  such  as  organizing  it  into  a  county 
and  attaching  it  to  another  of  our  counties  for  judicial  purposes,  &c.  We  cannot  under- 
take to  limit  the  jurisdiction  thus  recognized  and  asserted  by  the  political  depart- 
ment, and  until  tiiat  department  ceases  to  exercise  such  autliority  we  must  treat 
this  county  as  subject  to  the  jurisdiction  of  tiie  State  of  Texas.  Bedel  v.  Loomis,  II 
N.  H.  15;  State  v.  Danwell,  3  K.  I.  127;  Guadalupe  Co.  v.  Wilson  Co.,  58  Tex.  228; 
Foster  v.  Neilson,  2  Pet.  254;  United  States  v.  Arredondo,  6  Pet.  G91." —  Willie,  C.  J., 
in  Harrold  v.  Arrincjton,  1885,  61  Tex.  232,  233. 

In  re  Cooper,  1891,  143  U.  S.  472,  the  court  held  inter  alia  tliat  a  treaty  is  the  law  of 
the  land  wiiere  it  prescribes  a  rule  for  determining  riglits  of  citizens  or  subjects;  that 
courts  may  not  determine  whether  Government's  action  is  proper  in  pending  negotia- 
tions ;  tliat  tlie  Supreme  Court  has  no  power  to  determine  political  questions  and  tiiat 
courts  are  bound  by  the  Government's  act  asserting  dominion  over  any  part  of  the 
(Beliring)  sea. 

So  in  the  James  G.  Swan,  1892,  50  Fed.  Ill,  the  court  held  that  the  President  and 
Congress  are  vested  witli  all  the  responsibility  and  powers  of  the  Government  for 
determination  of  questions  as  to  tlie  maintenance  and  extension  of  our  national 
dominion,  and  inasmucli  as  they  liad  assumed  jurisdiction  and  sovereignty  over  the 
waters  of  Bchring  Sea  outside  of  the  three-mile  limit,  the  people  and  the  courts  are 
bouiul  by  such  action.  —  Eu. 


CIIAI'.   I.]  UNITED    STATES    V.    TEXAS.  77 

between  the  United  States  and  the  State  of  Texas  as  to  the  ownership 
of  wliat  is  designated  on  tlie  map  of  Texas  as  Greer  County,  and  pro- 
vides that  the  act  shall  not  be  construed  to  apply  to  that  county  until  tlie 
title  to  the  same  has  been  adjudicated  and  determined  to  be  in  the 
United  States.  In  order  that  tliere  might  be  a  speedy  and  final  judi- 
cial deterniination  of  this  controversy  the  Attorney  General  of  the 
United  States  was  authorized  and  directed  to  commence  and  prosecute 
on  behalf  of  the  United  States  a  proper  suit  in  equity  in  this  court 
against  the  State  of  Texas,  setting  forth  the  title  of  the  United  States 
to  the  country  lying  between  the  North  and  South  Forks  of  the  Eed 
River  where  the  Indian  Territory  and  the  State  of  Texas  adjoin,  east 
of  the  one  hundredth  degree  of  longitude,  and  claimed  by  the  State  of 
Texas  as  witliin  its  boundary.     26  Stat.  81,  92,  c.  182,  §  25.^ 

The  relief  asked  is  a  decree  determining  the  true  line  between  the 
United  States  and  the  State  of  Texas,  and  whether  the  land  constitut- 
ing what  is  called  "Greer  County,"  is  within  the  boundary  and  juris- 
diction of  the  United  States  or  of  the  State  of  Texas.  The  Government 
prays  that  its  rights,  as  asserted  in  the  bill,  be  established,  and  that  it 
have  such  other  relief  as  the  nature  of  the  case  may  require. 

In  support  of  the  contention  that  the  ascertainment  of  the  boundary 
between  a  territory  of  the  United  States  and  one  of  the  States  of  the 
Union  is  political  in  its  nature  and  cliaracter,  and  not  susceptible  of 
judicial  determination,  the  defendant  cites  Foster  v.  Neilson,  2  Pet.  253, 
307,  309;  Cherokee  Nation  v.  Georgia,  5  Pet.  1,  21;  United  States  v. 
Arredondo,  6  Pet.  691,  711 ;  and  Garcia  v.  Lee,  12  Pet.  511,  517. ^ 

In  United  States  v.  Arredondo  the  court,  referring  to  Foster  v.  Nell- 
son,  said:  "This  court  did  not  deem  the  settlement  of  boundaries  a 
judicial,  but  a  political  question  —  that  it  was  not  its  duty  to  lead,  hut 
to  follow  the  action  of  the  other  departments  of  the  Government." 
The  same  principles  were  recognized  in  Cherokee  Nation  v.  Georgia 
and  Garcia  v.  Lee. 

These  authorities  do  not  control  the  present  case.  They  relate  to 
questions  of  boundary  between  independent  nations,  and  have  no  ap- 
plication to  a  question  of  that  character  arising  between  the  general 
Government  and  one  of  the  States  composing  the  Union,  or  between  two 
States  of  the  Union.  By  the  Articles  of  Confederation,  Congress  was 
made  "the  last  resort  on  appeal  in  all  disputes  and  differences"  then 
subsisting  or  which  thereafter  might  arise  "  between  two  or  more 
States  concerning  boundary,  jurisdiction  or  any  other  cause  whatever ;  " 
the  authority  so  conferred  to  be  exercised  by  a  special  tribunal  to  be 

1  See  Hurrold  v.  Arrington,  1885,  64,  Tex.  233,  ante,  for  the  Texan  claim.  —  Ed. 

2  Tlie  succeeiling  paragraph  quoting  passage  from  Foster  v.  Neilson,  printed  ante,  is 
omitted.  —  Ed. 


78  STATES.  [part  I. 

organized  in  the  mode  prescribed  in  those  Articles,  and  its  judgment 
to  be  final  and  conclusive.     Art.  9.     At  the  time  of  the  adoption  of 
the  Constitution  there  existed,  as  this  court  said  in  Rhode  Island  v. 
Massachusetts,    12    Pet.  657,  723,  724,    controversies    between   eleven 
States,  in  respect  to  boundaries,  which  had  continued  from  the  first 
settlement  of  the  colonies.     The  necessity  for  the  creation  of  some 
tribunal  for  the  settlement  of  these  and  like  controversies  that  might 
arise,  under  the  new  government  to  be  formed,  must,  therefore,  have 
been  perceived  by  the  framers  of  the  Constitution,  and,  consequently, 
among  the  controversies  to  which  the  judicial   power  of  the  United 
States  was  extended  by  the  Constitution,  we  find  those  between  two  or 
more  States.     And  that  a  controversy  between  two  or  more  States,  in 
respect  to  boundary,  is  one  to  which,  under   the  Constitution,   such 
judicial  power  extends,  is  no  longer  an  open  question  in  this  court. 
The  cases  of  Rhode  Island  v.  Massachusetts,  12  Pet.  657 ;  Xeic  Jersey  v. 
New  York,  5  Pet.  28-4,  290  ;  Missouri  v.  Iowa,  7  How.   660 ;  Florida 
V.  Georgia,  17  How.  478;  Alabama  v.  Georgia,  23  How.  505  ;    Virginia 
V.  West  Virginia,!!  "Wall.  39,  oo;  Jlissouri  v.  KeMuckg,  11  Wall.  395; 
Indiana  v.  Kentucky,  136  U.  S.  479;  and  Nebraska  v.  Iowa,  ante,  359, 
were  all  original  suits,  in  this  court,  for  the  judicial  determination  of 
disputed  boundary  lines  between  States.     In  New  Jersey  v.  New  York, 
5  Pet.  284,  290,  Chief  Justice  Marshall  said  :  "  It  has  tlien  been  settled 
by  our  predecessors,  on  great  deliberation,  that  this  court  may  exercise 
its  original  jurisdiction  in  suits  against  a  State,  under  the  authority 
conferred  by  the  Constitution  and  existing  acts  of  Congress."     And  in 
Virginia,  v.  West  Virginia,  it  was  said  by  Mr.  Justice  ]Miller  to  be  the 
established  doctrine  of  this  court  "that  it  has  jurisdiction  of  questions 
of  boundary  between  two  States  of  the  Union,  and  that  this  jurisdiction 
is  not  defeated,  because  in  deciding  that  question  it  becomes  necessary 
to  examine  into  and  construe  compacts  or  agreements  between  those 
States,  or  because  the  decree  which  the  court  may  render,  affects  the 
territorial  limits  of  the  political  jurisdiction  and  sovereignty  of  the 
States  which  are  parties  to  the  proceeding."     So,  in  Wisconsin  v.  Peli- 
can Ins.  Co.,  127  U.  S.  265,  287,  288;  '•  By  the  Constitution,  therefore, 
this  court  has  original  jurisdiction  of  suits  brought  by  a  State  against 
citizens  of  another  State,  as  well  as  of  controversies  between  two  States. 
*     *     *     As  to  'controversies  between  two  or  more  States.'     The  most 
numerous  class  of  which  this  court  has  entertained  jurisdiction  is  that 
of  controversies  between  two  States  as  to  the  boundaries  of  their  terri- 
tory, such  as  were  determined  before  the  Revolution  by  the  King  in 
Council,    and  under  the  Articles  of  Confederation  (while  there  was 
no  national  judiciary)  by  committees  or  commissioners  appointed  by 
Consrress." 


CHAP.  I.]  UNITED   STATES    V.    TEXAS.  79 

In  view  of  these  cases,  it  cannot,  with  propriety,  be  said  that  a 
question  of  boundary  between  a  Territory  of  the  United  States  and 
one  of  the  States  of  the  Union  is  of  a  political  nature,  and  not  suscep- 
tible of  judicial  determination  by  a  court  having  jurisdiction  of  such  a 
controversy.  The  important  question,  therefore,  is,  whether  this  court 
can,  under  the  Constitution,  take  cognizance  of  an  original  suit  brought 
by  the  United  States  against  a  State  to  determine  the  boundary  be- 
tween one  of  the  Territories  and  such  State.  Texas  insists  that  no 
such  jurisdiction  has  been  conferred  upon  this  court,  and  that  the  only 
mode  in  which  the  present  dispute  can  be  peaceably  settled  is  by  agree- 
ment, in  some  form,  between  the  United  States  and  that  State.  Of 
course,  if  no  such  agreement  can  be  reached  —  and  it  seems  that  one  is 
not  probable  —  and  if  neither  party  will  surrender  its  claim  of  authority 
and  jurisdiction  over  the  disputed  territory,  the  result,  according  to 
the  defendant's  theory  of  the  Constitution,  must  be  that  the  United 
States,  in  order  to  effect  a  settlement  of  this  vexed  question  of  boun- 
dary, must  bring  its  suit  in  one  of  the  courts  of  Texas  —  that  State 
consenting  that  its  courts  may  be  open  for  the  assertion  of  claims 
against  it  by  the  United  States  —  or  that,  in  the  end,  there  must  be  a 
trial  of  physical  strength  between  the  government  of  the  Union  and 
Texas.  The  first  alternative  is  unwarranted  both  by  the  letter  and 
spirit  of  the  Constitution.  Mr.  Justice  Story  has  Avell  said:  "It 
scarcely  seems  possible  to  raise  a  reasonable  doubt  as  to  the  propriety 
of  giving  to  the  national  courts  jurisdiction  of  cases  in  which  the 
United  States  are  a  party.  In  would  be  a  perfect  novelty  in  the 
histor}^  of  national  jurisprudence,  as  well  as  of  public  law,  that  a  sov- 
ereign had  no  authority  to  sue  in  his  own  courts.  Unless  this  power 
were  given  to  the  United  States,  the  enforcement  of  all  their  rights, 
powers,  contracts  and  privileges  in  their  sovereign  capacity  would  be 
at  the  mercy  of  the  States.  They  must  be  enforced,  if  at  all,  in  the 
State  tribunals."  Story  Const.,  §  1674.  The  second  alternative,  above 
mentioned,  has  no  place  in  our  constitutional  system,  and  cannot  be 
contemplated  by  any  patriot  except  with  feelings  of  deep  concern. 

The  cases  in  this  court  show  that  the  framers  of  the  Constitution 
did  provide,  by  that  instrument,  for  the  judicial  determination  of  all 
cases  in  law  and  equity  between  two  or  more  States,  including  those 
involving  questions  of  boundary.  Did  they  omit  to  provide  for  the 
judicial  determination  of  controversies  arising  between  the  United 
States  and  one  or  more  of  the  States  of  the  Union  ?  This  question  is 
in  effect  answered  by  United  States  v.  North  Carolina,  136  U.  S.,  211. 
That  was  an  action  of  debt  brought  in  this  court  by  the  United  States 
against  the  State  of  North  Carolina,  upon  certain  bonds  issued  by  that 
State.     The  State  appeared,  the  case  -was  determined  here  upon  its 


80  STATES.  [part  F. 

merits,  and  judgment  was  rendered  for  the  State.  It  is  true  that  no 
question  was  made  as  to  the  jurisdiction  of  this  court,  and  uothino-  was 
therefore  said  in  the  opinion  upon  that  subject.  But  it  did  not  escape 
the  attention  of  the  court,  and  the  judgment  would  not  have  been  ren- 
dered except  upon  the  theory  that  this  court  has  original  jurisdiction 
of  a  suit  by  the  United  States  against  a  State.  As,  however,  the 
question  of  jurisdiction  is  vital  in  this  case,  and  is  distinctly  raised, 
it  is  proper  to  consider  it  upon  its  merits. 

The  Constitution  extends  the  judicial  power  of  the  United  States 
"to  all  cases,  in  law  and  equity,  arising  under  this  Constitution,  the 
laws  of  the  United  States  and  treaties  made,  or  which  shall  be  made, 
under  their  authority  ;  to  all  cases  affecting  ambassadors,  other  public 
ministers  and  consuls  ;  to  all  cases  of  admiralty  and  maritime  juris- 
diction ;  to  controversies  to  which  the  United  States  shall  be  a  party  ; 
to  controversies  between  two  or  more  States  ;  between  a  State'and  citi- 
zens of  another  State ;  between  citizens  of  different  States  ;  between 
citizens  of  the  same  State  claiming  lands  under  grants  of  different 
States,  and  between  a  State  or  the  citizens  thereof  and  foreign  States, 
citizens  or  subjects. 

''  In  all  cases,  affecting  ambassadors,  or  other  public  ministers  and 
consuls,  and  those  in  which  a  State  shall  be  party,  the  Supreme  Court 
shall  have  original  jurisdiction.  In  all  the  other  cases  before  men- 
tioned, the  Supreme  Court  shall  have  appellate  jurisdiction,  both  as  to 
law  and  fact,  with  such  exceptions  and  under  such  regulations  as  the 
Congress  shall  make."  Art.  3,  §  2.  "  The  judicial  power  of  the  United 
States  shall  not  be  construed  to  extend  to  any  suit  in  law  or  equity, 
commenced  or  prosecuted  against  one  of  the  United  States  by  citizens 
of  another  State,  or  by  citizens  or  subjects  of  any  foreign  State."  11th 
Amendment. 

It  is  apparent  upon  the  face  of  these  clauses  that  in  one  class  of 
cases  the  jurisdiction  of  the  courts  of  the  Union  depends  "on  the 
character  of  the  cause,  whoever  may  be  the  parties,"  and,  in  the  other, 
on  the  character  of  the  parties,  whatever  may  be  the  subject  of  contro- 
versy. Cohens  v.  Virginia,  6  Wheat.  264,  378,  393.  The  present  suit 
falls  in  each  class,  for  it  is,  plainly,  one  arising  under  the  Constitution, 
laws  and  treaties  of  the  United  States,  and,  also,  one  in  which  the 
United  States  is  a  party.  It  is,  therefore,  one  to  which,  by  the  express 
words  of  the  Constitution,  the  judicial  power  of  the  United  States 
extends.  That  a  Circuit  Court  of  the  United  States  has  not  jurisdic- 
tion, under  existing  statutes,  of  a  suit  by  the  United  States  against  a 
State,  is  clear ;  for  by  the  Revised  Statutes  it  is  declared  —  as  was 
done  by  the  Judiciary  Act  of  1789  —  that  "the  Supreme  Court  shall 
have  ei^clusive  jurisdiction  of  all  controversies  of  a  civil  nature  where 


CHAP.  I.]  UNITED    STATES    V.    TEXAS.  81 

a  State  is  a  party,  except  between  a  State  and  its  citizens,  or  between  a 
State  and  citizens  of  other  States  or  aliens,  in  which  latter  cases  it 
shall  have  original,  but  not  exclusive,  jurisdiction."  Rev.  Stat.  §  687; 
Act  of  Sept.  24,  1789,  c.  20,  §  13;  1  Stat.  80.  Such  exclusive  juris- 
diction was  given  to  this  court,  because  it  best  comported  with  the 
dignity  of  a  State,  that  a  case  in  which  it  was  a  party  should  be  deter- 
mined in  the  highest,  rather  than  in  a  subordinate  judicial  tribunal  of 
the  nation.  Why  then  may  not  this  court  take  original  cognizance  of 
the  present  suit  involving  a  question  of  boundary  between  a  Territory 
of  the  United  States  and  a  State  ? 

The  words,  in  the  Constitution,  "  in  all  cases  *  *  *  in  whicli  a 
State  shall  be  party,  the  Supreme  Court  shall  have  original  jurisdic- 
tion," necessarily  refer  to  all  cases  mentioned  in  the  preceding  clause 
in  whicli  a  State  may  be  made,  of  right,  a  party  defendant,  or  in  which 
a  State  may,  of  right,  be  a  party  plaintiff.  It  is  admitted  that  these 
words  do  not  refer  to  suits  brought  against  a  State  by  its  own  citizens 
or  by  citizens  of  other  States,  or  by  citizens  or  subjects  of  foreign 
states,  even  where  such  suits  arise  under  the  Constitution,  laws  and 
treaties  of  the  United  States,  because  the  judicial  power  of  the  United 
States  does  not  extend  to  suits  of  hidivlduals  against  States.  Hans  v. 
Louisiana,  134  U.  S.  1,  and  authorities  there  cited  ;  North  Carolina 
V.  Temple,  134  U,  S.  22,  30.  It  is,  however,  said  that  the  words  last 
quoted  refer  only  to  suits  in  which  a  State  is  a  party,  and  in  which, 
also,  the  opposite  party  is  another  State  of  the  Union  or  a  foreign 
state.  This  cannot  be  correct,  for  it  must  be  conceded  that  a  State 
can  bring  an  original  suit  in  this  court  against  a  citizen  of  another 
State.  Wisconsin  v.  Pelican  Ins.  Co.,  127  U.  S.  265,  287.  Besides, 
unless  a  State  is  exempt  altogether  from  suit  by  the  United  States,  we 
do  not  perceive  upon  what  sound  rule  of  construction  suits  brought  by 
the  United  States  in  this  court  —  especially  if  they  be  suits  the  correct 
decision  of  which  depends  upon  the  Constitution,  laws  or  treaties  of 
the  United  States  —  are  to  be  excluded  from  its  original  jurisdiction 
as  defined  in  the  Constitution.  That  instrument  extends  the  judicial 
power  of  the  United  States  "to  all  cases,"  in  law  and  equity,  arising 
under  the  Constitution,  laws  and  treaties  of  the  United  States,  and  to 
controversies  in  which  the  United  States  shall  be  a  party,  and  confers 
upon  this  court  original  jurisdiction  "in  all  cases  "  "in  which  a  State 
shall  be  party,"  that  is,  in  all  cases  mentioned  in  the  preceding  clause 
in  which  a  State  may,  of  right,  be  made  a  party  defendant,  as  well  as  in 
all  cases  in  which  a  State  may,  of  right,  institute  a  suit  in  a  court  of 
the  United  States.  The  present  case  is  of  the  former  class.  We  can- 
not assume  that  the  framers  of  the  Constitution,  while  extending  tlie 
judicial  power  of  the  United  States  to  controversies  between  two  or 


82  STATES.  [part  I. 

more  States  of  the  Union,  and  between  a  State  of  the  Union  and 
foreign  states,  intended  to  exempt  a  State  altogetlier  from  snit  by  the 
General  Government.  They  could  not  have  overlooked  the  possibility 
that  controversies,  capable  of  judicial  solution,  might  arise  between  the 
United  States  and  some  of  the  States,  and  that  the  permanence  of 
the  Union  might  be  endangered  if  to  some  tribunal  was  not  intrusted 
the  power  to  determine  them  according  to  the  recognized  principles  of 
law.  And  to  what  tribunal  could  a  trust  so  momentous  be  more 
aj)propriately  committed  than  to  that  which  the  people  of  the  United 
States,  in  order  to  form  a  more  perfect  Union,  establish  justice  and 
insure  domestic  tranquillity,  have  constituted  with  authority  to  speak 
for  all  the  people  and  all  the  States,  upon  questions  before  it  to  which 
the  judicial  power  of  the  nation  extends?  It  would  be  difficult  to 
suggest  any  reason  why  this  court  should  have  jurisdiction  to  determine 
questions  of  boundary  between  two  or  more  States,  but  not  jurisdiction 
of  controversies  of  like  character  between  the  United  States  and  a 
State. 

Mr.  Justice  Bradley,  speaking  for  the  court  in  Hans  v.  Louisiana, 
134  U.  S.  1,  15,  referred  to  what  had  been  said  by  certain  statesmen 
at  the  time  the  Constitution  was  under  submission  to  the  people,  and 
said:  "The  letter  is  appealed  to  now,  as  it  was  then,  as  a  ground 
for  sustaining  a  suit  brought  by  an  individual  against  a  State.  *  *  * 
The  truth  is,  that  the  cognizance  of  suits  and  actions  unknown  to  the 
law,  and  forbidden  by  the  law,  was  not  contemplated  by  the  Constitu- 
tion when  establishing  the  judicial  power  of  the  United  States.  Some 
things,  undoubtedly,  were  made  justiciable  which  were  not  known  as 
such  at  the  common  law ;  such,  for  example,  as  controversies  between 
States  as  to  boundary  lines,  and  other  questions  admitting  of  judicial 
solution.  And  yet  the  case  of  Penn  v.  Lord  Baltimore,  1  Ves.  Sen. 
444,  shows  that  some  of  these  unusual  subjects  of  litigation  were  not 
unknown  to  the  courts  even  in  colonial  times  ;  and  several  cases  of  the 
same  general  character  arose  under  the  Articles  of  Confederation,  and 
were  brought  before  the  tribunal  provided  for  that  purpose  in  those 
articles.  131  U.  S.  App.  50.  The  establishment  of  this  new  branch 
of  jurisdiction  seemed  to  be  necessary  from  the  extinguishment  of  dip- 
lomatic relations  between  the  States."  That  case,  and  others  in  this 
court  relating  to  the  suability  of  States,  proceeded  upon  the  broad 
ground  that  "it  is  inherent  in  the  nature  of  sovereignty  not  to  be 
amenable  to  the  suit  of  an   individual  witliout  its  consent." 

The  question  as  to  the  suability  of  one  government  by  another  gov- 
ernment rests  upon  wholly  different  grounds.  Texas  is  not  called  to 
the  bar  of  this  court  at  the  suit  of  an  individual,  but  at  the  suit  of  the 
government  established  for  the  common  and  equal  benefit  of  the  people 


CHAP.   I.]  UNITED    STATES    V.   TEXAS.  83 

of  all  the  States.  The  submission  to  judicial  solution  of  controversies 
arising  between  these  two  governments,  "  each  sovereign,  with  respect 
to  the  objects  committed  to  it,  and  neither  sovereign  with  respect  to 
the  objects  committed  to  the  other,"  McCuIloch  v.  State  of  Marijland, 
4  Wheat.  316,  400,  410,  but  both  subject  to  the  supreme  law  of  the 
land,  does  no  violence  to  the  inherent  nature  of  sovereignty.  The 
States  of  the  Union  have  agreed,  in  the  Constitution,  that  the  judicial 
power  of  the  United  States  shall  extend  to  all  cases  arising  under  the 
Constitution,  laws  and  treaties  of  the  United  States,  without  regard 
to  the  character  of  the  parties  (excluding,  of  course,  suits  against  a 
State  by  its  own  citizens  or  by  citizens  of  other  States,  or  by  citizens 
or  subjects  of  foreign  states),  and  equally  to  controversies  to  which 
the  United  States  shall  be  a  party,  without  regard  to  the  subject  of 
such  controversies,  and  that  this  court  ma}'  exercise  original  jurisdic- 
tion in  all  such  cases,  "in  which  a  State  shall  be  party,"  without  ex- 
cluding those  in  which  the  United  States  may  be  the  opposite  party. 
The  exercise,  therefore,  by  this  court,  of  such  original  jurisdiction  in  a 
suit  brought  by  one  State  against  another  to  determine  the  boundary 
line  between  them,  or  in  a  suit  brought  by  the  United  States  against 
a  State  to  determine  the  boundary  between  a  Territory  of  the  United 
States  and  that  State,  so  far  from  infringing,  in  either  case,  upon  the 
sovereignty,  is  with  the  consent  of  the  State  sued.  Such  consent  was 
given  by  Texas  when  admitted  into  the  Union  upon  an  equal  footing 
in  all  respects  with  the  other  States. 

We  are  of  oi)inion  that  this  court  has  jurisdiction  to  determine  the 
disputed  question  of  boundary  between  the  United  States  and  Texas. 

It  is  contended  that,  even  if  this  court  has  jurisdiction,  the  dispute 
as  to  boundary  must  be  determined  in  an  action  at  law,  and  that  the 
act  of  Congress  requiring  the  institution  of  this  suit  in  equity  is 
unconstitutional  and  void  as,  in  effect,  declaring  that  legal  rights  shall 
be  tried  and  determined  as  if  they  were  equitable  rights.  This  is  not 
a  new  question  in  this  court.  It  was  suggested  in  argument,  though 
not  decided,  in  Fowler  v.  Llndsey,  3  Dall.  411,  413.  Mr.  Justice 
Washington,  in  that  case,  said :  "  I  will  not  say  that  a  State  could  sue 
at  law  for  such  an  incorporeal  right  as  that  of  sovereignty  and  juris- 
diction ;  but  even  if  a  court  of  law  would  not  afford  a  remedy,  I  can 
see  no  reason  why  a  remedy  should  not  be  obtained  in  a  court  of  equity. 
The  State  of  Xew  York  might,  I  think,  file  a  bill  against  the  State  of 
Connecticut,  praying  to  be  quieted  as  to  the  boundaries  of  the  disputed 
territory  ;  and  this  court,  in  order  to  effectuate  justice,  might  appoint 
commissioners  to  ascertain  and  report  those  boundaries.  But  the 
question  arose  directly  in  RJiode  Island  v.  Massachusetts,  12  Pet.  657, 
734,  which  was  a  suit  in  equity  in  this  court  involving  the  boundary 


84  STATES.  [part  I. 

line  between  two  States.  The  court  said:  "No  court  acts  differently 
in  deciding  on  boundary  between  States  than  on  lines  between  separate 
tracts  of  land ;  if  there  is  uncertainty  where  the  line  is,  if  there  is  a 
confusion  of  boundaries  by  the  nature  of  interlocking  grants,  the  oblit- 
eration of  marks,  the  intermixing  of  possession  under  different  proprie- 
tors, the  effects  of  accident,  fraud  or  time  or  other  kindred  causes,  it 
is  a  case  appropriate  to  equity.  An  issue  at  law  is  directed,  a  com- 
mission of  boundary  awarded ;  or,  if  the  court  are  satisfied  without 
either,  they  decree  what  and  where  the  boundary  of  a  farm,  a  manor, 
a  province  or  a  State  is  and  shall  be."  When  that  case  was  before  the 
court  at  a  subsequent  term.  Chief  Justice  Taney,  after  stating  that  the 
case  was  of  peculiar  character,  involving  a  question  of  boundary  between 
two  sovereign  States,  litigated  in  a  court  of  justice,  and  that  there  were 
no  precedents  as  to  forms  and  modes  of  proceedings,  said :  "  The  sub- 
ject was,  however,  fully  considered  at  January  term,  1838,  when  a 
motion  was  made  by  the  defendant  to  dismiss  this  bill.  Upon  that 
occasion  the  court  determined  to  frame  their  proceedings  according  to 
those  which  had  been  adopted  in  the  English  courts,  in  cases  most 
analogous  to  this,  where  the  boundaries  of  great  political  bodies  had 
been  brought  into  question.  And,  acting  upon  this  principle,  it  was 
then  decided,  that  the  rules  and  practice  of  the  Court  of  Chancery 
should  govern  in  conducting  this  suit  to  a  final  issue.  The  reasoning 
upon  which  that  decision  was  founded  is  fully  stated  in  the  opinion 
then  delivered ;  and  upon  re-examining  the  subject,  we  are  quite  satis- 
fied as  to  the  correctness  of  this  decision."  14  Pet.  210,  256.  The 
above  cases,  New  Jersey  v.  Neiv  York,  Missouri  v.  loiva,  Florida  v. 
Georgia,  Alahania  v.  Georgia,  Virginia  v.  West  Virginia,  Missouri  v. 
Kentuckij,  Indiana  v.  Kentucky,  Nebraska  v.  Iowa,  were  all  original 
suits  in  equity  in  this  court,  involving  the  boundary  of  States.^  In 
view  of  these  precedents,  it  is  scarcely  necessary  for  the  court  to 
examine  this  question  anew.  Of  course,  if  a  suit  in  equity  is  appro- 
priate for  determining  the  boundary  between  two  States,  there  can  be 
no  objection  to  the  present  suit  as  being  in  equity  and  not  at  law.  It 
is  not  a  suit  simply  to  determine  the  legal  title  to,  and  the  ownership 
of,  the  lands  constituting  Greer  County.  It  involves  the  larger  ques- 
tion of  governmental  authority  and  jurisdiction  over  that  territory. 
The  United  States,  in  effect,  asks  the  specific  execution  of  the  terms 

1  These,  together  with  Hand!//  v.  Anthony,  1820,  5  Wheat.  374,  are  the  leading  cases 
on  river  boundaries,  as  well  as  on  the  question  of  jurisdiction.  The  exact  references 
to  the  reports  in  wiiioli  tiicy  are  found  are  given  in  an  earlier  section  of  the  opinion, 
supra. 

It  may  be  noted  that  Foster  v.  Nellson  and  cases  cited  were  instances  of  conventional 
or  artificial  boundaries;  tliese,  on  the  contrary,  are  cases  of  rivers  or  natural  bound- 
aries.—  Ed. 


CHAP.  I.]       UNITED    STATES    OF    AMERICA    V.    PRIOLEAU.  85 

of  the  treaty  of  1819,  to  the  end  that  the  disorder  and  public  mischiefs 
that  will  ensue  from  a  continuance  of  the  present  condition  of  things 
may  be  prevented.  The  agreement,  embodied  in  the  treaty,  to  fix  the 
lines  with  precision,  and  to  place  landmarks  to  designate  the  limits  of 
the  two  contracting  nations,  could  not  well  be  enforced  by  an  action  at 
law.  The  bill  and  amended  bill  make  a  case  for  the  interposition  of  a 
court  of  equity. 

Demurrer  overruled.^ 


Section  5.  —  Change  op  Sovereignty. 


(«)    Effect  on  Public  Rights  and  Obligations. 

UNITED  STATES  OF  AMERICA  v.  PPJOLEAU. 

Chancery,   1866. 

(35  Law  Journal,   Chancery,  N.  S.) 

Toward  the  end  of  the  civil  vrar  in  the  United  States  (1861- 
1865),  the  Confederate  government  having  got  possession  of  1,365 
bales  of  cotton  in  Texas,  had  it  shipped  from  Galveston  to  Havana, 
where  it  was  consigned  to  an  agent  of  Fraser  &  Co.  On  the  10th  of 
June,  1865,  the  cotton  was  shipped  from  Havana  to  Liverpool,  con- 
signed to  the  defendants  Fraser,  Trenholni  &  Co.  (Prioleau  being 
the  English  member  of  the  firm),  and  was  of  the  value  of  40,000?. 
Fraser,  Trenholm  &  Co.  had  made  a  contract  with  one  M'Rae,  gen- 
eral European  agent  of  the  Confederate  government,  to  build  eight 
steamships  to  be  employed  in  transporting  cotton  and  other  produce 
from  the  Confederate  States.  They  were  to  receive  all  consignments 
of  said  merchandise  and  sell  the  same  according  to  the  instructions 
the}'"  should  receive  for  that  purpose.  The  company  were  to 
advance  the  expenses  of  transportation,  and  were  then  to  recoup 
themselves  out  of  the  proceeds  of  the  consignments.  They  had 
already  expended  20,000?  for  sailing  expenses,  to  say  nothing  of  the 
cost  of  the  ships. 

1  The  dissenting  opinion  of  Fuller,  C.  J.,  with  wliom  Lamar,  J.,  concurred,  is  omitted. 

Grants  of  land  within  a  district  made  by  a  State  exercising  rf^/Jirto  sovereignty  over 
the  district,  in  the  mistaken  belief  that  the  district  is  included  within  its  boundaries 
as  ascertained  by  compromise  between  the  States  are  void  {Coffee  v.  Grocer,  1887, 
123  U.  S.  1,  reversing  same  case  as  reported  in  19  Fla.  61  and  20  id.  64).  —  Ed. 

For  a  brief  but  admirable  statement  of  "  Boundary  Controversies  and  Commissions 
in  the  United  States,"  see  A.  B.  Hart's  Foundations  of  American  Foreign  Policy, 
1901,  pp.  91-107. 


86  STATES.  [part  I. 

When  this  consignment  of  cotton  arrived  in  Liverpool,  the  Con- 
federate government  had  been  dissolved,  and  the  Confederate  States 
had  submitted  to  the  authority  of  the  United  States  government ; 
and  the  latter  government  filed  a  bill  praying  to  have  the  cotton 
delivered  up  to  them,  and  for  an  injunction  and  receiver.^ 

Judgment. —  Wood,  V.  C. :  "  There  are  one  or  two  points  which,  I 
think,  are  tolerably  clear  in  this  case.  The  first  point  is  with  reference 
to  the  right  of  the  United  States  of  America,  at  this  moment,  to  the 
cotton,  subject  to  the  agreement.  I  treat  it  first  in  that  way.  It 
has  scarcely  been  disputed  on  the  present  argument,  and  could 
hardly  be  disputed  at  any  further  stage  of  the  inquiry,  that  the 
right  is  clear  and  distinct,  because  the  cotton  in  question  is  tlie 
admitted  result  of  funds  raised  by  a  de  facto  government,  exercising 
authority  in  what  were  called  the  Confederate  States  of  America ; 
that  is  to  say,  several  of  those  states  which,  in  union,  formerly  con- 
stituted the  United  States,  and  which  now,  in  fact,  constitute  them  ; 
and  that  de  facto  government,  exercising  its  powers  over  a  consider- 
erable  number  of  states  (more  than  one  would  be  quite  enough), 
raises  money — be  it  by  voluntary  contribution,  or  be  it  by  taxation,  is 
not  of  much  importance.  The  defendant  Prioleau,  in  cross-exam- 
ination, admits  that  they  exercised  considerable  power  of  taxation  ; 
and  with  those  means,  and  claiming  to  exercise  that  authority,  they 
obtained  from  several  of  tlie  States  of  America  funds  by  which 
they  purchased  this  cotton  for  the  use  of  the  de  facto  government. 
That  being  so,  and  that  de  facto  government  being  displaced,  1 
apprehend  it  is  quite  clear  that  the  United  States  of  America  (that 
is  to  say,  tlie  government  which  has  been  successful  in  displacing 
the  de  facto  government,  and  whose  authority  was  usurped  or  dis- 
placed, or  whatever  term  you  may  choose  to  apply  to  it),  the  au- 
thority being  restored,  stand,  in  reference  to  this  cotton,  in  tlie  posi- 
tion of  those  who  have  acquired,  on  behalf  of  the  citizens  of  the 
United  States,  a  public  property;  because  otherwise,  as  has  been 
well  said,  there  would  be  no  body  who  could  sue  in  respect  of,  or 
deal  with,  property  that  has  been  raised,  not  by  contribution  of  any 
one  sovereign  state  (which  might  raise  a  question,  owing  to  the 
peculiar  constitution  of  the  Union,  if  it  had  been  raised  in  Virginia 
or  Texas,  or  in  any  given  State),  but  the  cotton  is  the  product  of 
levies,  voluntary  or  otherwise,  on  the  members  of  the  several  states 
which  have  united  themselves  into  the  Confederate  States  of 
America,  and  which  are  now  under  the  control  of  the  present  plaint- 
iffs, and  are  represented,  for  all  purposes,  by  the  present  ]>liiintiffs. 
That  being  so,  the  right  of  the  present  plaintiffs  to  this  cotton,  sub- 

1  Statement  of  the  case  substituted  by  tlie  Editor. 


CHAP.   I.]         UNITED    STATES    OF   AMERICA   V.    PRIOLEAU.  87 

ject  to  this  agreement  is,  I  think,  clear,  because  the  agreement  is 
an  agreement  purporting  to  be  made  on  l^ehalf  of  the  then  de  facto 
existing  government,  and  not  of  any  other  persons.  That  case  of 
The  luu;/  of  the  Tico  Sicilies  and  tlie  case  of  The  Kinff  of  Spain. 
and  otlier  cases  of  tlie  same  kind,  wliich  it  is  not  necessary  to  go 
through,  show  that  whenever  a  government  de  facto  has  obtained 
the  possession  of  property,  as  a  government,  and  for  the  purposes  of 
the  government  de  facto,  tlie  government  which  displaces  it  suc- 
ceeds to  all  the  rights  of  the  former  government,  and,  among  other 
things,  succeeds  to  the  property  they  have  so  acquired.^ 

"  Now  I  come  to  the  second  head  of  the  question,  and  I  confess  at 
this  moment,  as  at  present  advised,  I  do  not  feel  much  doubt  on  the 
subject,  namely,  the  question  whether  or  not,  taking  this  property, 
they  must  or  must  not  take  it  subject  to  the  agreement.  Itaj)pears 
to  me,  at  present,  they  must  take  it  subject  to  the  agreement.  It  is 
an  agreement  entered  into  by  a  de  facto  government,  treating  with 
persons  who  have  a  perfect  right  to  deal  with  them.  I  apprehend  if 
they  had  been  American  subjects  they  might  do  so.  One  of  them. 
Prioleau,  is  not  an  American  subject ;  he  is  a  naturalized  British 
subject ;  he  would  have  a  perfect  right  to  deal  with  a  de  facto 
government ;  and  it  cannot  be  compared  with  any  one  of  those  cases 
3Ir.  Gifford  put,  of  persons  taking  the  property  of  another  Avith 
knowledge  of  the  rights  of  that  other.  That  is  a  species  of  argu- 
ment that  cannot  be  applied  to  international  cases  of  this  descrip- 
tion, and  for  a  very  good  reason ;  if  so,  there  would  be  no  possibility 
during  the  existence  of  a  government  de  facto  of  ai.:y  person  dealing 
with  that  government  in  any  part  of  the  world.  The  courts  of 
every  country  recognize  a  government  de  facto  to  this  extent,  for 
the  purpose  of  saying — you  are  established  de  facto,  if  you  are 
carrying  on  the  course  of  government,  if  you  are  allowed  by  those 
whom  you  affect  to  govern  to  levy  taxes  on  them,  and  they  pay 
those  taxes,  and  contribution  is  made  accordingly,  or  you  are  acquir- 
ing proprety,  and  are  at  war,  having  the  rights  of  belligerents,  not 
being  treated  as  mere  rebels  by  persons  who  say  they  are  the 
authorized  government  of  the  country.  Other  nations  can  have 
nothing  to  do  with  that  matter.  They  say  we  are  bound  to  protect 
our  subjects  who  treat  with  the  existing  government ;  and  we  must 
give  to  those  subjects,  in  our  country,  every  right  which  the  govern- 
ment de  facto  can  give  to  them,  and  must  not  allow  the  succeeding 
government  to  assert  any  right  as  against  the  contracts  which  have 

1  Cases  referred  to:  King  of  the  Two  Sicilies  v.  Willcox,  1851,  1  Sim.  N.  S.  ."01, 
382-oot5,  where  cases  are  cluborately  cited ;  Hullttt  v.  King  of  Spain,  1828,  1  Dow  &  CI. 
1(51)  (also  reported  in  2  Bligh,  N.  S.  31,  and  4  Kuss.  225.)  —  Ed. 


88  STATES.  [part  I. 

been  entered  into  by  the  government  de  facto  ;  but,  as  expressed  by 
Lord  Cranworth  in  the  ca  se  referred  to,  tliey  must  succeed  m  every 
respect  to  the  property  as  tliey  find  it,  and  subject  to  all  the  condi- 
tions and  liabihties  to  which  it  is  subject  and  by  which  tliey  are 
bound.  Otherwise,  I  do  not  see  any  answer  to  Mr.  James's  illus- 
tration, and  I  do  not  see  why  there  should  not  have  been  a  bill  filed 
to  have  the  Alabama  delivered  up ;  *  *  *  because  on  the  theory  of 
the  present  plaintiffs,  it  was  their  property  just  as  much  as  their 
cotton  is  now.  If  the  case  had  been  this  (and  it  is  the  only  case  I 
can  consider  as  making  any  difference,  but  that  difference  would  be 
fatal  to  the  plaintiffs'  case  in  another  point  of  view) :  if  they  had 
been  a  set  of  marauders,  a  set  of  robbers  (as  was  said  to  be  the  case 
in  the  kingdom  of  Xaples,  truly  or  untruly),  devastating  the  country, 
and  acquiring  property  in  that  way,  and  then  affecting  to  deal  with 
your  subjects  in  England,  it  would  not  be  the  United  States,  but  the 
individuals  who  had  been  robbed  and  suffered,  who  could  come  as 
plaintiffs.  The  United  States  could  only  come  to  claim  this  because 
it  has  been  raised  by  public  contribution;  and  although  the  United 
States,  who  are  now  the  government  de  facto  and  dejnre^  claim  it 
as  public  property,  yet  it  would  not  be  public  property  unless  it 
was  raised,  as  I  have  said,  by  exercising  the  rights  of  government, 
and  not  by  means  of  mere  robbery  and  violence. 

"I  confess,  therefore,  I  have  so  little  doubt,  that  this  agreement 
is  one  that  would  be  binding  on  the  plaintiffs,  that  I  cannot  act 
against  these  gentlemen  without  securing  to  them  the  reasonable 
benefit  of  this  agreement ;  and  I  cannot  put  them  under  any  terms 
which  would  exclude  them  from  the  reasonable  benefit  of  what  they 
are  entitled  to,  and  must  be  held  entitled  to,  as  I  think,  at  the  hear- 
ing of  the  cause." 

[The  Vice  Chancellor  then  proceeds  to  decree  that  the  cotton  was 
now  the  property  of  the  United  States  Government,  but  that  they 
must  take  it  subject  to  the  obligations  entered  into  respecting  it  by 
the  de  facto  Confederate  Government. 

The  defendant  Prioleau  was  appointed  receiver,  Avitli  power  to  sell 
the  cotton,  but  he  was  required  to  give  security  for  its  value  ultra 
the  20,000?.,  the  amount  of  the  defendant's  lien.^] 

1  In  the  case  of  the  United  States  of  America  v.  McRae,  1869,  L.  E.  8  Eq. 
69,  Jamp:s,  V.  C,  held,  "  that,  upon  the  suppression  of  a  rebellion,  the  restored 
legitimate  government  is  entitled,  as  of  right,  to  all  moneys,  goods,  and  treasure 
which  were  public  property  of  the  government  at  the  time  of  the  outbreak,  such 
right  being  in  no  way  affected  by  the  wrongful  seizure  of  the  property  by  the  usurp- 
ing government. 

"But  with  respect  to  property  which  has  been  voluntarily  contributed  to,  or 


CHAP.  I.]  UNITED   STATES   V.    SMITH.  89 

UNITED  STATES  v.  SMITH. 
United  States  Circuit  Court,  Eastkrx  District  of  Virginia,  1877. 

(1  Hughes  Reports,  347.) 

Hughes,  J.  —  This  case  is  not  before  me  upon  issues  of  fact,  but 
upon  facts  admitted  by  demurrer,  and  upon  the  law  as  arising  upon 
the  facts  so  admitted. 

The  allegations  of  the  declaration  are  these : 

1st.  That  the  defendant  was  indebted  to  the  insurgent  government 
of  Virginia,  in  the  sum  of  $5,000,  on  tlie  2d  day  of  April,  1865. 

2d.  That  he  promised  the  said  government  to  pay  the  said  indebt- 
edness. 

3d.  That  the  said  insurgent  government  was,  on  the  9th  April,  1865, 
overthrown  by  the  United  States  by  force  of  arms,  and  the  lawful 
authority  of  the  United  States  re-established  in  the  State  ;  and, 

4th.  That  the  defendant,  after  the  said  9th  day  of  April,  1865,  in 
consideration  of  the  premises,  undertook  and  promised  to  pay  to  the 
United  States  the  said  sum  of  $5,000. 

The  demurrer  admits  these  allegations  to  be  true ;  yet  denies  that 
they  constitute  a  case  of  indebtedness  by  the  defendant  to  the  United 
States,  and  prays  judgment,  «S:c. 

In  technical  strictness,  by  admitting  the  truth  of  these  several  allega- 
tions, the  demurrer  admits  the  case  of  the  plaintiffs  to  be  sufficient  to 
■warrant  a  judgment  for  him. 

But  let  it  be  assumed  that  the  fourth  allegation,  being  an  inference 
of  law,  is  not  admitted  by  the  demurrer.  Then  the  question  for 
decision  is,  whether  the  United  States  acquired  by  conquest  of,  and 
succession  to,  the  insurgent  government  of  Virginia,  on  the  9th  April, 
1865,  such  a  right  to  the  money  which  was  then  due  from  the  defend- 
ant to  the  insurgent  State  government  as  was  valid  and  insufficient  to 
raise  the  assumpsit  set  forth  in  the  fourth  clause  of  the  declaration. 

Stating  the  case  differently,  the  question  before  me  is.  whether  the 
United  States  succeeded  by  conquest  and  succession  to  the  rights  of 
action,   as  well  as  the  property,  of  the  insurgent  State  government, 

acqxiired  by,  the  insurrectionary  government  in  tlie  exercise  of  its  usurped  au- 
tliority,  and  has  been  impressed  in  its  liands  witb  tlie  character  of  public  property, 
tlie  legitimxte  government  is  not,  on  its  restoration,  entitled  by  title  paramount, 
but  as  successor  only  (and  to  that  extent  recognizing  the  authority)  of  the  dis- 
placed usurping  government;  and  in  seeking  to  recover  such  pro;ierty  from  an 
agent  of  the  displaced  governmmt  can  only  do  so  to  the  sams  extent,  and  subject 
the  same  rights  and  obligations,  as  if  that  government  had  not  been  displaced 
and  was  itself  proceeding  against  the  agent." — Ed. 


90  STATES.  [part  I. 

which  was  overthrown  on  the  9th  April,  1865.  If  so,  the  law  will 
adjudge  that  the  defendant  promised  to  pay  to  the  United  States  the 
money  which  he  thus  owed  to  that  government,  and  the  court  will 
render  judgment  against  him  accordingly. 

As  a  matter  of  history,  it  cannot  be  disputed  that  it  was  the  power 
of  the  United  States,  and  not  of  any  State,  or  of  what  was  called  the 
Alexandria  government  of  Virginia,  which  was  brought  to  bear  against 
the  insurrectionary  government  of  the  South ;  or,  that  the  overthrow 
and  conquest  of  the  insurrectionary  government  of  Virginia  was  in  fact 
affected  by  the  United  States.  Therefore,  whatever  rights  of  property 
or  of  action  ordinarily  result  under  the  law  of  nations  and  of  war 
from  conquest,  resulted  to  the  United  States,  on  the  9th  April,  1865, 
and  did  not  result  to  what  was  called  the  Alexandria  government  of 
Virginia. 

The  very  able  committee  of  the  General  Assembly  of  Virginia,  Mr. 
Marshall  at  its  head,  which  had  this  matter  in  charge,  in  the  winter 
of  1865,  in  the  report  submitted  through  one  of  its  members,  Judge 
Joynes,  one  of  the  ablest  and  most  learned  judges  of  the  State,  con- 
ceded this  right  to  the  United  States  in  their  report,  in  which  they 
said : 

"  It  is  very  clear  that  the  present  government  representing  the  State 
of  Virginia  cannot  assert  any  claim  to  this  money  by  right  of  conquest, 
for  all  the  rights  of  co)iquest,  whatever  they  be,  belong  to  the  United 
States." 

And,  therefore,  the  particular  question  for  decision  in  this  case  is, 
whether  the  right  of  action,  which  the  demurrer  admits  that  the  insur- 
gent State  government  of  Virginia  had  against  the  defendant  on  the  2d 
to  the  8th  April,  1865,  for  $5,000,  passed  by  conquest,  and,  after  the 
peace  following  complete  conquest,  to  the  United  States,  on  or  after 
the  9th  April,  1865.  Does  succession,  after  complete  conquest  and 
peace,  give  to  the  conquering  power  the  right  of  enforcing,  by  civil 
action,  the  payment  of  debts  due,  at  the  date  of  the  conquest,  to  the 
conquered  power  ?  In  this  case  it  is  to  be  observed  that  there  was  not 
merely  a  temporary  conquest,  and  that  condition  of  quasi  belligerence 
attending  such  an  event,  but  complete  and  final  conquest  producing 
absolute  peace,  and  that  undisputed  succession  of  one  power  by  the 
other  resulting  from  such  a  conquest.  It  was  a  case  of  undisputed 
succession  peacefully  held  after  complete,  final  conquest. 

Speaking  of  what  passes  by  conquest  to  the  conquering  power,  the 
Supreme  Court  of  the  United  States  says,  in  ZTnited  States  v.  Li/on  et 
al.,  16  Wallace,  435,  the  conquerer's  "  rights  are  no  longer  limited  to 
the  mere  occupation  of  what  he  has  taken  into  his  actual  possession, 
but  they  extend  to  all  the  property  and  rights  of  a  conquered  State, 


CHAP.  I.]  UNITED   STATES   V.    SMITH.  91 

including  even  debts  as  well  as  personal  and  real  property."  Mr. 
Justice  Clifford,  in  delivering  this  opinion  of  the  court,  and  using  the 
language  thus  quoted,  simply  gives  expression  to  the  settled  principle 
of  the  law  of  nations. 


IrPElie  case  61  The  Attorney-General  of  Bombay  y.  Amerchand,  cited 
at  length  in  Elphinstone  v.  Bedreechiun,  1  Knapp's  P.  C.  Cases,  329,  it 
was  held  that  money  in  bank  belonging  to  a  conquered  prince  may  be 
recovered  in  a  suit  against  the  banker  by  the  conquering  nation. 

In  tlie  case  of  United  States  v.  McRae^  English  Law  Reports,  8 
Equity  Cases,  p.  72,  it  was  said  by  the  vice-chancellor:  — 

"I  apprehend  it  to  be  clear,  public,  universal  law,  that  any  govern- 
ment which  de  facto  succeeds  to  any  other  government,  whether  by 
revolution  or  restoration,  conquest  or  reconquest,  succeeds  to  all  the 
public  property,  to  everything  in  the  nature  of  public  property,  and  to 
all  rights  in  respect  to  the  public  property  of  the  displaced  power, 
whatever  may  be  the  nature  or  origin  of  the  title  of  such  displaced 
power.  Any  such  public  money  in  any  treasury,  any  such  public 
property  found  in  any  warehouse,  fort,  or  arsenals,  would,  on  the  success 
of  the  new  or  restored  power,  vest  ipso  facto  in  such  power,  and  it 
would  have  the  right  to  call  to  account  any  fiscal  or  other  agent,  or  any 
debtor  or  accountant  to  or  of  the  persons  who  had  exercised  and  had 
ceased  to  exercise  the  authority  of  a  government,  the  agent,  debtor,  or 
accountant  having  been  the  agent,  debtor,  or  accountant  of  such  persons 
in  their  character  or  pretended  character  of  a  government.  But  this  is 
the  right  of  succession,  is  the  right  of  representation,  is  a  right,  not 
paramount,  but  derived,  I  will  not  say  under,  but  tlirough,  the  sup- 
pressed and  displaced  authority,  and  can  only  be  enforced  in  tlie  same 
way,  and  to  the  same  extent,  and  subject  to  tlie  same  correlative 
obligations  and  rights,  as  if  that  authority  had  not  been  suppressed 
and  displaced,  and  was  itself  seeking  to  enforce  itJr^ — t- — 

All  the  authorities  have  held  the  same  doctrine,  and,  indeed,  it  has 
never  been  disputed.  __ 

These  authoritie§,d6se  the  question^in  fayor  of  the  right  of  they 

1  ",34^e*ef»re,/4r"bill  by  the  United  States  Government,  after  the  suppression  of 
tlie  rebellion,  against  an  agent  of  the  late  Confederate  government,  for  an  account 
of  his  dealings  in  respect  of  tlie  Confederate  loan,  which  he  was  employed  to  raise 
in  this  country  [England],  was  dismissed  with  costs,  in  the  absence  of  proof  that 
any  property  to  which  the  plaintiffs  were  entitled  in  their  own  right,  as  distin- 
guished from  their  right  as  successors  of  the  Confederate  government,  ever  readied 
the  hands  of  the  defendant,  and  on  the  plaintiff  declining  to  have  the  account 
taken  on  the  same  footing  as  if  taken  between  the  Confederate  government  and 
the  defendant  as  the  agent  of  such  government,  and  to  pay  what,  on  the  footing  of 
such  account  might  be  found  due  from  them."  (Quoted  from  2  riiilUmore's  Inter- 
national La.v,  154.)  —  Ec. 


92  STATES,  [part  I. 

United  States  to  the  property  of  the  overthrown  government  of  Vir- 
ginia, as  the  insurgent  government,  and  to  the  debts  due,  whether 
from  citizens  or  from  foreigners,  to  that  government,  at  the  time  of  its 
overthrow. 

The  objection  of  defendant's  counsel,  that  assumpsit  will  not  lie  for 
an  obligation  arising  by  implication  from  a  debtor  to  a  conquered 
State  to  the  conquering  government  after  conquest,  because  promises 
do  not  arise  from  acts  of  violence,  is  not  tenable.  It  is  not  denied,  it 
is  admitted  by  demurrer,  that  the  defendant  by  receiving  from  the 
State  government  before  its  overthrow  $5,000  not  due  to  him,  became 
indebted  to  that  government.  It  is  settled  law,  as  already  shown, 
that  a  conquering  power-  after  the  conquest,  succeeds  to  the  debts 
which  were  due  to  the  conquered  power.  If,  therefore,  by  the  law  of 
nations,  which  is  part  of  the  law  of  England  and  America,  such  a  debt 
becomes  due  from  a  citizen  to  the  conquering  power,  then  the  law  of 
England  and  America,  even  the  common  law  of  the  two  countries, 
implies  an  assumpsit,  a  promise  on  the  part  of  that  citizen  to  pay  the 
debt.  The  citizen  owes  the  debt  to  some  one.  The  money  he  owes 
does  not  belong  to  himself.  He  is  bound  in  conscience  to  pay  it  to 
the  rightful  owner,  who  is  entitled  ex  quo  et  bono  to  receive  it.  And  the 
law  of  nations,  as  well  as  of  England  and  America,  declares  that  the 
conquering  power  is  that  rightful  owner.  There  is  no  violence  between 
the  debtor,  as  such,  and  the  conquering  power.  The  violence  was 
between  the  two  governments.  The  debt,  as  a  debt,  becomes  due  to 
the  conquering  power,  irrespective  of  the  consideration  whether  the 
debtor  was  a  combatant  or  a  non-combatant.  In  his  character  of  debtor, 
not  in  that  of  man  or  woman,  combatant  or  non-combatant,  native  or 
foreigner,  he  became,  qua  debtor  to  the  conquered  power,  the  debtor  of 
the  conquering  power. 

This  is  not  a  question  between  soldier  and  citizen,  growing  out  of 
acts  committed  while  war  was  flagrant,  in  the  course  of  the  soldier's 
service,  as  in  Hughes  v.  Litseij,  5  Am.  L.  Keg.  148.  Nor  is  it  a  ques- 
tion of  ])rize  or  capture  durante  hello,  concerning  property  taken  or 
right  accpiired  during  the  progress  of  war,  as  in  CooUdge  v.  Guthrie, 
8  Id.  22;  and  in  Eljihinstone  v.  Bedreechum,  1  Knapp,  P.  C.  C.  300, 
where  the  court  expressly  says  that  the  capture  was  made  nondum 
cessant  bello. 

The  indebtedness  of  the  defendant  in  this  case  to  the  insurgent 
government  of  Virginia,  was  not  one  arising  jure  helll  between  bellig- 
erents, but  b}'  contract  between  friends.  It  is  true  that  the  succession 
of  the  United  States  to  the  insurgent  government  was  an  event  durante 
bello;  but  that  event  having  been  completed,  the  indebtedness  of  the 
defendant  to  the  succeeding  government  arising  after  the  close  of  the 


CHAP.  I.]  UNITED    STATES   V.    SMITH.  93 

war,  was  not  an  indebtedness  jure  belli,  but  by  contract.  Being  in- 
debted, tlie  implied  assumpsit  of  the  defendant  to  pay,  his  promise  to 
pay,  is  a  common  law  obligation.  A  debtor  may  be  liable  in  assumjisit 
to  a  creditor,  but  if  by  violence  the  creditor  is  killed,  the  debtor  then 
becomes  liable  i:i  assumpsit  to  the  creditor's  administrator. 

I  do  not  think,  therefore,  with  defendant's  counsel,  that  this  is  a 
case  of  first  impression.  It  is  an  action  at  common  law,  founded  upon 
a  contract  arising  of  common  law  implication,  and  as  such,  is  not  new 
or  unprecedented. 

Xor  is  the  objection  of  defendant's  counsel  tenable,  which  they  take 
on  the  score  of  the  jurisdiction  of  the  court.  The  circuit  courts  of  the 
United  States  have  original  cognizance  "of  all  suits  at  common  law, 
etc.,  etc.,  where  the  United  States  is  plaintiff"  (see  clause  3  of  section 
629,  U.  S.  R.  S.),  or  in  other  words  "  of  all  suits  of  a  civil  nature  at 
common  law  or  in  equity,  etc.,  etc.,  in  which  the  United  States  is 
plaintiff,  etc.,  etc. "  (Section  1,  Jurisdiction  Act  of  March  3d,  1875). 
These  definitions  of  jurisdiction  do  not  refer  to  the  claim  sued  upon, 
its  character  or  its  origin,  but  only  to  the  nature  and  form  of  the 
action  which  may  be  made  the  instrument  for  establishing  the  demand. 
A  citizen  of  the  United  States,  indebted  to  a  citizen  of  France  by  a 
contract  made  in  Paris,  may  be  sued  in  the  Circuit  Court  of  the  United 
States  for  the  district  in  which  he  resides  in  this  country.  His  demand 
is  not  a  common  law  demand,  but  if  sued  upon  it,  in  an  action  at  law, 
the  suit  is  in  form  and  character  a  suit  at  common  law.  He  may  be 
sued  in  assumpsit,  if  the  demand  be  such  as  to  make  that  form  of 
action  proper.  So  a  demand  arising  durante  hello,  and  not  arising  at 
common  law,  may  be  sued  upon  in  an  action  at  common  law  in  this 
country,  either  in  a  State  or  Federal  court.  Under  whatever  law, 
whether  of  peace  or  war,  of  the  domicile  or  foreign  jurisdiction,  the 
obligation  of  the  defendant  arises,  the  suit  proper  to  enforce  it  accord- 
ing to  the  forms  of  action  employed  in  England  or  this  country, 
whether  it  be  at  common  law  or  in  equity,  may  be  brought  in  the 
Federal  courts,  if  the  courts  have  jurisdiction  of  the  parties  to  the 
suit. 

As  to  the  proposition  of  defendant's  coimsel,  that  this  money  is  a 
trust  fund,  and  the  execution  or  abuse  of  the  trust  must  be  examined 
into  by  Virginia  alone,  —  that  is  a  question  not  yet  arising  in  the 
cause,  and  it  does  not  appear  how  it  will  arise.  This  State  has,  by 
adopting  the  report  of  the  committee  of  1865,  and  b}--  long  inaction, 
declined  to  look  into  or  after  the  trust,  if  such  it  be.  Tlie  defendant 
has  put  in  no  plea  in  the  cause  claiming  that  he  has  discharged  his 
fiduciary  obligations  in  respect  to  the  debt  as  a  trust  fund.  And  it  is 
not  until  all  action  of  the  sort  has  seemed  to  have  become  wholly  im- 
probable, that  the  United  States  have  now  moved  in  the  matter. 


94  STATES.  [part  I. 

As  a  preliminary  step  to  devoting  the  fund  to  its  trust  purposes,  it 
would  seem  incumbent  that  the  person  charged  with  the  legal  title  in 
trust  should  proceed  to  collect  it  in,  and  as  the  legal  title,  by  the  law 
of  nations  and  of  the  land,  is  in  the  United  States,  we  have  a  right  to 
presume  that,  if  the  fund  bears  the  character  of  a  trust,  the  United 
States  will,  after  collecting  it,  give  to  it  the  direction  required  by  the 
trust. 

As  to  the  proposition  of  defendant's  counsel,  that  the  war  of  the 
United  States  was  not  against  the  insurgent  government  of  Virginia, 
and  that  the  overthrow  of  that  government  was  not  a  conquest,  but 
only  the  setting  aside  of  one  government  and  the  assumption  of  its 
functions  by  another,  it  can  hardly  find  acceptance  in  view  of  the  facts 
of  history.  The  event  happened  at  the  close  of  a  frightful  war,  and 
was  directl}''  produced  by  arms,  and  by  armies  in  the  field.  The  power 
of  the  United  States  was  directed  against  the  insurgent  State  govern- 
ments, even  more  than  against  their  confederated  authorities.  The 
war  was  conducted  for  the  overthrow  of  those  governments.  When 
they  were  crushed,  the  war  ceased,  and  the  historical  facts  of  conquest 
cannot  be  changed  or  obliterated  by  the  employment  of  theoretic 
paraphrases  in  speaking  of  it.  As  to  the  insurgent  State  govern- 
ments, it  was  a  conquest,  and  was  followed  by  the  legal  results  of 
conquest.  This  debt  is  due.  It  is  due  to  some  rightful  claimant,  and 
I  think  the  law  makes  it  sufficiently  apparent  who  that  claimant  is. 

The  demurrer  must  be  overruled.^ 

1  "  In  war,  the  public  property  of  an  enemy  captured  on  land  becomes,  for  the  time 

/being  at  least,  tlie  property  of  the  conqueror.     No  judicial  proceeding  is  necessary  to 

pass  the  title.     Usually  the  ultimate  ownership  of  real  property  is  settled  by  the  treaty 

//  |0f  peace,  but  so  long  as  it  is  held  and  not  surrendered  by  a  treaty  or  otherwise  it 

remains  the  property  of  the  conqueror. 

"  This  well-settled  principle  in  the  law  of  war  was  recognized  by  this  court  in  United 
States  V.  Huckabee,  16  Wallace,  434,  as  applicable  to  the  late  civil  war.  At  the  close 
of  that  war  tliere  was  no  treaty.  When  the  insurrection  was  put  down  the  govern- 
ment of  tlie  insurgents  was  broken  up  and  tliere  was  no  power  to  treat  with.  Hence 
I  tlie  title  to  all  captured  property  of  the  confederate  government  then  became  absolute 
'  in  the  United  States"  (Cliase,  C.  J.,  in  Titus  v.  U.  S.,  1874,  20  Wall.  475,  481,  482). 
See,  also,   Whitfield  v.  U.  S.,  1875,  92  U.  S.  165. 

In  the  case  of  the  Te.xan  Bonds  (1  Wharton's  Digest,  20-23),  Mr.  Upham,  commis- 
sioner, in  delivering  his  opinion,  said  :  — 

"  Tiie  matter  of  the  indebtedness  of  Texas  was  a  distinct  subject  of  agreement  by 
tlie  terms  of  the  union.  According  to  those  terms  the  vacant  and  unajjpropriated  lands 
within  the  limits  of  Texas  were  to  be  retained  by  her,  'and  applied  to  the  payment  of 
the  debts  and  liabilities  of  the  Republic  of  Texas,  and  the  residue  of  the  lands,  after 
discharging  these  debts  and  liabilities,  was  to  be  disposed  of  as  the  State  might  direct, 
but  in  no  event  were  the  debts  and  liabilities  to  become  a  charge  upon  the  Government 
of  the  United  States.'     (U.  S.  Statutes  at  Large,  vol.  5,  p.  798.) 

"  The  lands  of  Texas  were  thus  specifically  set  apart  for  the  payment  of  the  debts 


CHAP.  I.]  THE    UNITED    STATES    V.    PERCHEMAN.  95 

(h)  Effect  on  Private  Rights. 

THE  UXITED  STATES  v.  PERCHEMAK 

Supreme  Court  of  the  United  States,  1833. 

(7  Peters,  51.) 

Juan  Percheman  claimed  two  thousand  acres  of  land  lying  in  the 
territory  of  Florida,  by  virtue  of  a  grant  of  the  Spanish  governor  of 
that  province  made  in  1815.     After  the  cession  of  Florida  to  the  United 

of  Texas,  by  agreement  of  the  two  governments,  in  addition  to  any  separate  pledge 
Texas  had  previously  made  of  tiiis  class  of  property,  for  tlie  payment  of  lier  debts. 

"  The  United  States  subsequently,  by  act  of  Congress,  on  the  9th  of  September, 
1850,  on  condition  of  the  cession  of  large  tracts  of  these  lands,  agreed  to  pay  Texas 
$10,000,000,  but  stipulated  'that  )$.5,000,000  of  tiie  amount  should  be  retained  in  the 
United  States  treasury  until  creditors,  holding  bonds,  for  which  duties  on  imports  were 
specifically  pledged,  should  file  releases  of  all  claims  against  the  United  States." 
(U.  S.   Statutes  at  Large,  vol.  9,  ch.  49,  p.  446.) 

"  It  thus  appears  that  the  United  States  has  acted,  from  the  outset,  in  concert  with 
Texas,  in  causing  express  provision  to  be  made  for  the  payment  of  these  debts. 

"  A  difficulty  early  arose  in  carrying  the  law,  above  cited,  into  effect,  for  the  reason 
that  the  pledge  of  payment  of  the  debts  of  Texas  was  made  generally  upon  her  reve- 
nues, and  was  not  specific  '  on  imposts '  eo  nomine,  and  for  the  further  reason  tliat  doubts 
arose  whether  any  portion  of  the  debts  could  be  paid  under  this  contract,  unless  the 
whole  could  be  discharged." 

(Report  of  the  commission  of  claims  under  the  convention  of  1853.) 

Mr.  Dana  says  of  this  case:  — 

"  It  certainly  would  not  be  satisfactory  to  say  tliat  the  United  States  discharges  its 
obligation  to  the  creditors  of  Texas,  to  whom  her  customs  were  pledged,  by  paying 
only  the  amount  of  the  customs  received. 

"  The  United  States  determines  what  those  duties  shall  be,  in  reference  to  the  in- 
terest and  policy  of  the  whole  republic.  The  condition  of  Texas  is  changed  by  her 
annexation.  The  new  government  has  a  large  control  over  the  material  resources 
of  the  inhabitants,  in  the  way  of  internal  revenues,  excise  or  direct  taxation,  in  its 
demands  on  the  services  of  the  people,  and  in  the  debts  it  can  impose ;  in  fact,  the 
entire  public  system  of  Texas  has  passed  into  other  hands,  and  no  such  state  of  things 
any  longer  exists  as  that  to  which  the  creditor  looked.  It  may  be  better  or  worse,  but 
it  is  not  the  same;  and,  if  the  duties  laid  by  the  United  States  and  collected  in  Texan 
ports  did  not  in  fact  pay  the  debts,  it  would  be  unjust  for  the  United  States  to  limit  the 
payment  of  the  creditor  to  them.  The  truth  is,  by  the  annexation  the  United  States 
changed  the  nature  of  the  thing  pledged,  and  is  bound  generally  to  do  equity  to  the 
creditor."     (Dana's  Wheaton,  note  18.) 

Mr.  Lawrence  says :  "  The  liability  of  the  United  States  for  the  debts  of  Texas 
came  before  the  mixed  commission,  under  the  convention  with  England  of  1853,  in  the 
case  of  a  British  subject  who  had  received  before  the  annexation,  bonds  socureil  by  a 
pledge  of  the  faith  and  revenue  of  Texas.  It  was  disposed  of  on  the  ground  that  never 
having  been  made  a  subject  for  international  interposition  against  the  United  States, 
it  did  not  fall  within  the  scope  of  the  convention;  but  it  seemed  to  be  admitted  that 


96  STATES.  [part  I, 

States  by  the  treaty  of  1819,  this  claim  was  rejected  by  the  United 
States  commissioners  appointed  to  settle  claims  to  territory  in  Florida; 
and  the  question  then  came  before  the  court  for  decision,  from  the 
opinion  of  which  the  following  extract  from  page  86  is  given  : 

Mr.  Chief  Justice  Marshall  delivered  the  opinion  of  the  court  :^  — 

the  liability  of  the  United  States,  if  any,  arose,  not  from  the  merger,  but  from  the 
transfer,  under  the  Constitution  of  tlie  United  States,  to  the  Federal  Government  of 
the  duties  on  imports.  It  was  said  by  the  American  commissioner,  in  announcing  his 
opinion,  that  it  was  an  inaccurate  view  of  the  case  to  regard  this  anne.xation  as  an 
entire  adoption  of  one  nation  and  its  revenues  by  another.  'Texas  is  still  a  sovereign 
State,  with  all  the  rights  and  capacities  of  government,  except  that  her  international 
relations  are  controlled  by  the  United  States,  and  she  has  transferred  to  the  United 
States  her  right  of  duties  on  imports.' 

"And  he  seemed  to  consider  any  claim  arising  from  the  previous  pledge  of  such 
duties  to  be  limited  to  their  value.  The  British  commissioner  held  that  the  obligation 
of  Texas  to  pay  her  debts  is  not  in  dispute,  nor  has  it  been  argued  that  the  mere  act 
of  her  annexation  to  tiie  United  States  has  transferred  her  liabilities  to  the  Federal 
Government,  though  certainly,  as  regards  foreign  governments,  the  United  States  is 
now  bound  to  see  that  the  obligations  of  Texas  are  fulfilled.  It  is  the  transfer  of  the 
integral  revenues  of  Texas  to  the  Federal  Government  that  is  relied  on  as  creating 
the  new  liability."' 

(Decisions  of  the  Commission  of  Claims  under  the  convention  of  1853,  405-420, 
Lawrence's  Wheaton,  ed.  1863,  p.  54,  note). 

See,  also,  Magoon's  Law  of  Civil  Government  under  Military  Occupation  (2d.  ed. 
1902)  pp.  177-193  (especially  at  p.  190) ;  529-531  ;  630-640. 

When  Lombardj'  and  Venice  were  respectively  acquired  by  Italy  at  the  close  of 
the  wars  of  1859  and  1800  with  Austria,  the  Italian  government  assumed  no  part 
of  the  general  debt  of  Austria,  but  only  the  local  debts  of  the  ceded  provinces.  So,  in 
tlie  case  of  the  cession  of  Alsace  and  Lorraine  to  Germany  in  1871,  no  part  of  the 
French  national  debt  was  assumed  by  Germany  on  their  account.  (Bluntschli :  Droit 
International,  Article  48.) 

On  the  other  hand,  on  the  seizure  of  Schleswig-Holstein  by  Prussia,  in  1806,  the 
debt  of  Denmark  was  divided  between  that  country  and  Schleswig-llolstein ;  "and  in 
the  same  year,  Italy,  by  convention  witli  France,  took  upon  itself  so  much  of  the  Papal 
debt  as  was  proportionate  to  the  revenues  of  the  Papal  provinces  which  it  had  appro- 
priated."    (Hall's  Int.  Law,  104,  note.) 

Tlie  following  passage  states  briefly  tlie  general  doctrine  of  publicists :  — 

"  It  is  well  to  be  understood,  at  a  period  when  alterations  in  the  constitutions  of 
governments,  and  revolutions  in  states,  are  familiar,  that  it  is  a  clear  position  of  the 
law  of  nations,  that  treaties  are  not  affected,  nor  positive  obligations  of  any  kind  with 
other  powers,  or  with  creditors,  weakened,  by  any  such  mutations.  A  state  neither 
loses  any  of  its  riglits,  nor  is  discharged  from  any  of  its  duties,  by  a  change  in  the  form 
of  its  civil  government.  The  body  politic  is  still  the  same,  though  it  may  have  a  dif- 
ferent organ  of  communication.  So,  if  a  state  should  be  divided  in  respect  to  terri- 
tory, its  riglits  and  obligations  are  not  impaired  ;  and  if  they  have  not  been  apportioned 
by  special  agreement,  those  rights  are  to  be  enjoyed,  and  those  obligations  fulfilled,  by 
all  the  parts  in  common."     (1  Kent's  Com.,  25.)  —  Ed. 

1  That  part  of  the  opinion  is  omitted  which  discusses  the  power  of  the  conqueror 
to  confirm  and  to  regulate  procedure  to  confirm  inchoate  titles  to  land.  The  case  it- 
self as  well  as  cases  cited  in  the  note  clearly  establish  the  right.  —  Ed. 


CHAP.  I.]  THE   UNITED    STATES    V.    PERCHEMAN.  97 

"  It  may  not  be  unworthy  of  remark  that  it  is  very  unusual  even 
in  cases  of  conquest,  for  the  conqueror  to  do  more  than  to  disphice 
the  sovereign  and  assume  dominion  over  tiie  country.  The  modern 
usage  of  nations,  wliich  lias  become  law,  would  be  violated  ;  that 
sense  of  justice  and  of  right  which  is  acknowledged  and  felt  by  the 
whole  civilized  world  would  be  outraged,  if  private  property  should 
be  generally  confiscated,  and  private  rights  annulled.  The  people 
change  their  allegiance  ;  their  relation  to  their  ancient  sovereign  is 
dissolved  ;  but  their  relations  to  each  other,  and  their  rights  of  prop- 
erty, remain  undisturbed.  If  this  be  the  modern  rule  even  in  cases 
of  conquest,  who  can  doubt  its  application  to  the  case  of  an  amicable 
cession  of  territory  ?  Had  Florida  changed  its  sovereign  by  an  act 
containing  no  stipulation  respecting  the  property  of  individuals,  the 
right  of  property  in  all  those  who  became  subjects  or  citizens  of  the 
new  government  would  have  been  unaffected  by  the  change.  It 
would  have  remained  the  same  as  under  the  ancient  sovereign.  *  *  * 

"A  cession  of  territory  is  never  understood  to  be  a  cession  of 
the  property  belonging  to  its  inhabitants.  The  king  cedes  that  only 
which  belonged  to  him.  Lands  he  had  previously  granted  were  not 
his  to  cede.  Neither  party  could  so  understand  the  cession.  Xeither 
party  could  consider  itself  as  attempting  a  wrong  to  individuals, 
condemned  by  the  practice  of  the  whole  civilized  world.  The  cession 
of  a  territory  by  its  name  from  one  sovereign  to  another,  conveying 
the  compound  idea  of  surrendering  at  the  same  time  the  lands  and 
the  people  who  inhabit  them,  would  be  necessarily  understood 
to  pass  the  sovereignty  only,  and  not  to  interfere  with  private 
property."  ^ 

1  Followed  in:  Mutual  A sso.  Soc.r.  Watts,  1816,  1  Wlieat.  279;  Mitcliel  et  al.  v. 
U.  S.,  1835,  9  Pet.  711,  734-736,  749;  Strother  v.  Lucas,  18-38,  12  Pet.  410;  U.  S.  v. 
Clarke's  Heirs,  1812.  10  Pet.  228;  Air/iart  v.  Massien,  1878,98  U.  S.  491  :  Klukead 
V.  U.  S.,  1893,  150  U.  S.  483,  to  the  effect  that  fixtures  attached  to  land  pass  with 
cession  of  land. 

Distinguislied  in  :  Garcia  \.  Lee,  1838,  12  Pet.  511  ;  U.  S.  v.  Wigrjins,  1840,  14  Pet. 
334;  U.  S.  V.  Miranda  et  al.,  1853,  16  Pet.  153;  Chavez  v.  Chavez  de  Sanchez,  1893, 
7  New  Mex.  58. 

Followed  in  State  Courts:  Hall  v.  Root,  1851,  19  Ala.  378;  Teschemacher  v.  Thomp- 
son,1861, IS  Calif.  11,  22-25  (opinion  of  Field,  C.  J.);  Minturn  v.  Brower,  1804,  24 
Calif.  644,  660  et  seq.;  Little  v.  Watson,  1850,  .32  Me.  214  ;  May  v.  Specht  et  al.,  1849, 
1  Mich.  187;  Sanborn  v.  Vance,  1888,  69  Mich.  224;  Roussin  v.  Parks,  1844,  8  Mo. 
628;  Charlotte  (of  color)  v.  Chouteau,  1857,  25  Mo.  465,  478-479;  U.  S.  v.  Lurero, 
1869,  1  New  Mex.  422;  Browning  v.  Browning,  1886,  3  New  Mex.  371;  Burnett  v. 
Barnett,  1897,  9  New  Mex.  205,  211-213. 

See  especially,  Leitensdorfer  v.  Wehh,  1857,  20  How.  170,  infra.  See  brief  note  on 
Barnett  v.  Barnett,  in  11  Harv.  Law  Rev.  343.  —  Ed. 

4 


98  STATES.  '  [part  I. 


THE   UNITED   STATES   v.    REPENTIGNY. 
Supreme  Court  of  the  United  States,  1866. 

(5  Wallace,  211.) 

Mr.  Justice  Nelson  delivered  the  opinion  of  the  court.^ 

The  bill  in  this  case  was  filed  in  the  court  below  to  recover  posses- 
sion of  a  large  tract  of  land  of  six  leagues  square,  fronting  on  the 
River  Ste.  Marie,  at  the  Saut,  which  connects  the  waters  of  Lake 
Superior  with  those  of  Lake  Huron,  in  the  State  of  Michigan.  The 
grant  of  the  land  was  made  on  the  18th  October,  1750,  by  the  gov- 
ernor and  intendant-general  of  Canada  (then  called  New  France)  to 
Louis  De  Bonne,  a  captain  of  infantry,  and  Count  Repentigny,  an 
ensign,  in  the  French  army.  The  complainants  derive  title  under 
them.  It  was  confirmed  by  the  King  of  France  the  next  year,  on  the 
24th  June,  1751. 

The  grant  was  to  De  Bonne  and  Repentigny,  their  heirs  and  assigns, 
"  in  perpetuity  by  title  of  feof  and  seigniory,"  with  all  the  customary 
rights  belonging  to  that  species  of  estate.  Repentigny  went  into 
possession  about  the  date  of  the  grant,  at  the  Saut,  having  about  the 
same  time  received  an  appointment  to  command  the  military  post 
established  there.  He  constructed  a  small  stockade  fort,  and  made 
some  improvements  in  connection  with  it,  such  as  the  clearing  of  a 
few  acres  of  land  and  the  erection  of  huts  for  the  people  with  him, 
and  continued  thus  engaged  till  1754.  When  war  broke  out  between 
France  and  England  he  was  called  away  into  active  military  service 
of  the  government,  and  never  afterwards  returned.  De  Bonne  never 
took  personal  possession,  or  possession  of  any  other  character,  except 
that  derived  from  the  transient  occupation  of  his  co-tenant. 

The  bill  was  filed  on  the  9th  January,  1861,  one  hundred  and  ten 
years  since  the  date  of  the  grant. 

This  act  of  1860,  which  authorizes  the  institution  of  these  proceed- 
ings, was  passed  in  pursuance  of  petitions  to  Congress  by  the  repre- 
sentatives of  the  original  grantees.  The  first  notice  to  this  government 
of  any  claim  to  the  lands  on  their  behalf  was  in  the  year  1825  or  1826, 
some  seventy-five  years  after  the  date  of  the  grant.  Since  then  the 
subject  has,  from  time  to  time,  been  brought  to  the  attention  of  Con- 
gress, and  finally  disposed  of  by  the  passage  of  the  act  in  question. 
The  act,  as  we  have  seen,  refers  the  claimants  to  the  judiciary  for 
relief,  and  prescribes  the  principles  wliich  shall  govern  it  in  hearing 
and  adjudicating  upon  the  case.     They  are  — 

1  Statement  of  facts  of  the  case  omitted.  —  Ed. 


CHAP.  I.]  THE   UNITED    STATES    V.    REPENTIGNY.  99 

1.  The  law  of  nations. 

2.  The  laws  of  the  country  from  which  the  title  was  derived. 

3.  The  principles  of  justice. 

4.  The  stipulations  of  treaties. 

In  the  light  of  these  principles,  we  shall  proceed  to  an  examination 
of  the  claim ;  and,  first,  as  to  the  claim  of  the  representatives  of 
Eepentigny.  He  was  a  native  of  Canada,  and  a  captain  in  the  French 
army  at  the  close  of  the  war,  which  terminated  in  the  surrender  of  that 
province  to  the  British  forces,  in  1760.  His  family  was  among  the 
earliest  emigrants  to  the  country  after  possession  had  been  taken  bv 
the  King  of  France,  and  held  high  and  influential  positions  in  the 
government.  Soon  after  the  execution  of  the  definitive  treaty  of  peace 
of  1763,  the  Governor  of  Canada  opened  a  correspondence  with  Eepen- 
tigny to  induce  him  to  remain  in  the  province,  and  become  a  subject 
of  Great  Britain,  promising  him  protection  and  advancement  in  his 
profession.  He  was  then  about  thirty-eight  years  of  age.  But  he 
declined  all  the  advances  made  to  him,  and  soon  after  left  the  country, 
by  order  of  his  superior  officer,  to  take  a  command  on  the  Island  of 
Newfoundland,  where  the  Indians  were  disturbing  the  settlers,  and 
spent  the  rest  of  his  life  in  the  military  service  of  France,  having 
risen  to  the  rank  of  Major-General  and  Governor  of  Senegal,  on  the 
Island  of  Goree,  and  its  dependencies.  He  died  in  1786,  leaving  a  son 
Gaspard,  an  officer  in  the  French  naval  service,  from  whom  the  present 
claimants  descended,  and  who  reside  in  the  Island  of  Gnadaloupe. 
The  preliminary  treaty  of  the  3d  November.  1762,  at  the  surrender  of 
Canada,  provided  in  the  second  article,  in  behalf  of  his  Britannic 
majesty,  that  the  French  inhabitants,  or  others  who  would  have  been 
subjects  of  the  Most  Christian  King,  in  Canada,  may  retire  in  all  safety 
and  freedom,  wherever  they  please,  and  may  sell  their  estates,  pro- 
vided it  be  to  his  Britannic  majesty's  subjects,  and  transport  their 
effects,  as  well  as  their  persons,  without  being  restrained  in  their 
emigration,  under  any  pretence  whatsoever,  except  debts  or  criminal 
prosecutions,  —  tlie  term  limited  for  this  emigration  being  the  space 
of  eighteen  months,  to  be  computed  from  the  day  of  the  ratification  of 
the  definitive  treaty.  The  definitive  treaty  of  the  10th  Februarv  of 
1763  contained  a  similar  article. 

The  articles  of  capitulation  at  Montreal,  dated  8th  September,  1760, 
when  the  Canadas  were  given  up  to  the  British  forces,  secured  to  the 
inhabitants  their  property,  movable  and  immovable  ;  and  the  proclama- 
tion of  the  king,  under  date  of  7th  October,  1763,  pledged  to  his  loving 
subjects  of  Canada  his  paternal  care  for  the  securit}'  of  the  libertv  and 
property  of  those  who  are,  or  should  become,  inhabitants  thereof. 
These  pledges,  both  before  and  after  the  treaty,  were  but  the  recogni- 


100  STATES.  [part  I. 

tiou  of  the  modern  usages  of  civilized  nations  which  have  acquired  the 
force  of  law,  even  in  the  case  of  an  absolute  and  unqualified  conquest 
of  the  enemy's  country.  But  the  rule  is  limited,  as  in  the  pledge  of 
the  king,  in  his  proclamation  to  the  inhabitants  of  the  conquered  terri- 
tory, to  those  who  remain  and  become  the  subjects  or  citizens  of  the 
victorious  sovereign,  —  those  who,  in  the  language  of  Chief  Justice 
Marshall,  change  their  allegiance,  and  where  the  relations  to  their 
ancient  sovereign  are  dissolved.  Speaking  of  the  cession  of  Florida, 
he  observed:  "Had  Florida  changed  its  sovereign  by  an  act  contain- 
ing no  stipulation  respecting  the  property  of  individuals,  the  right  of 
property  in  all  those  who  became  subjects  or  citizens  of  the  new  gov- 
ernment would  have  been  unaffected  by  the  change."  United  States 
V.  Perchejiian,  7  Peters,  51-87. 

Another  rule  of  public  law,  kindred  to  this  one  is,  that  the  con- 
queror who  has  obtained  permanent  possession  of  the  enemy's  country 
has  the  right  to  forbid  the  departure  of  his  new  subjects  or  citizens 
from  it,  and  to  exercise  his  sovereign  authority  over  them.  Hence 
the  stipulation  in  the  capitulation  and  treaties  of  cession  providing 
for  the  emigration  of  those  inhabitants  who  desire  to  adhere  to  their 
ancient  allegiance,  usually  fixing  a  limited  period  within  which  to  leave 
the  country,  and  frequently  extending  to  them  the  privilege,  in  the 
meantime,  of  selling  their  property,  collecting  their  debts,  and  carry- 
ing with  them  their  effects. 

iSTow,  in  view  of  these  principles,  it  is  apparent  that  Repentigny, 
having  refused  to  continue  an  inhabitant  of  Canada,  and  to  become  a 
subject  of  Great  Britain,  but,  on  the  contrary,  elected  to  adhere  in 
his  allegiance  to  his  native  sovereign,  and  to  continue  in  his  service, 
deprived  himself  of  any  protection  or  security  of  his  property,  except 
so  far  as  it  was  secured  by  the  treaty.  That  protection,  as  we  liave 
seen,  was  limited  to  the  privilege  of  sale  or  sales  to  British  subjects, 
and  to  carry  with  him  his  effects,  at  any  time  within  eighteen  months 
from  its  ratification.  Whatever  property  was  left  unsold  was  aban- 
doned to  the  conqueror.  Repentigny  acted  upon  this  view  of  his  rights. 
Besides  the  property  in  question,  he  owned  and  possessed  a  seigniory 
situate  above  Montreal,  on  the  River  St.  Lawrence,  called  La  Chenay, 
which  he  sold  to  Colonel  Christie,  a  British  officei-,  and  in  the  deed  it 
is  recited  that  he  had  a  mind  to  go  to  France,  and  therefore,  as  allowed 
by  the  late  treaty  of  peace,  was  disposed  to  sell,  &c.  This  was  in  1766, 
although  it  appears  that  steps  had  been  taken  in  respect  to  the  sale  at 
an  earlier  day.  It  is  evident,  also,  that  he  had  been  engaged  in  nego- 
tiating for  the  sale  of  the  seigniory  in  question,  as  in  a  memorial  of 
his  services  presented  to  the  chief  of  the  bureau  of  the  French  col- 
onies, he  states,  under  date  of  1765,  that  the  establishment,  —  referring 


CHAP.  I,]  THE   UNITED   STATES   V.   REPENTIGNY.  101 

to  that  at  the  Saut  Ste.  Marie,  —  was  burnt  in  1762  by  the  Indians,  at 
the  time  his  attorney  was  negotiating  at  Montreal  with  the  English 
for  the  sale  of  it.  And,  in  1772,  in  a  communication  to  the  French 
authorities  on  the  subject  of  military  services  and  sacrifices,  he 
observes  :  "  I  thought  that  after  a  lease  of  thirty  years  of  services, 
fulfilled  with  honor  in  the  colonies,  and  the  sacrifice  of  a  fortune  more 
than  reasonable,  in  leaving  Canada,  ray  native  country,  I  should  be 
able  at  forty-five  years  of  age  to  claim  a  regiment  in  the  colonies  with- 
out too  much  ambition."  And  again,  in  answer  to  an  intimation  that 
the  king  would  give  him  permission  to  retire,  he  observes  :  '•'  If  I  had 
not  calculated  upon  dying  in  the  service,  I  should  not  have  sacrificed 
more  than  four-fifths  of  my  fortune,  ray  well-being,  and  that  of  my 
family,  in  abandoning  Canada,  my  country." 

And,  further,  in  a  communication  to  his  government,  supposed  to  be 
about  1773  or  1774,  he  observed  :  "  The  cession  of  Canada,  my  country, 
has  overturned  a  fortune  more  than  moderate,  which  I  could  preserve 
only  by  an  oath  of  fidelity  to  the  new  master,  which  was  too  hard  for 
my  heart.  The  offers  of  the  English  ministry  made  to  my  eldest 
brother  to  retain  us  in  their  service  are  unequivocal  proofs  of  the  con- 
sideration we  enjoyed  in  Canada." 

Repentigny  was  a  gentleman  of  education  and  high  intelligence. 
He  rose  to  the  rank  of  general  in  the  army,  and  aspired  to  that  of 
Marshal  of  France ;  was  Governor  of  Senegal  and  its  dependencies, 
and,  as  is  obvious  from  his  correspondence  with  his  government,  com- 
prehended fully  the  principles  of  public  law  which  forfeited  all  his 
property  left  unsold  at  the  time  he  retired  from  Canada,  under  the 
provisions  of  the  treaty. 

He  died  in  1786,  twenty-three  years  after  the  date  of  the  treaty  ; 
and,  during  all  this  time,  not  only  set  up  no  claim  to  this  seigniory, 
but,  on  the  contrary,  repeatedly,  as  we  have  seen,  urged  the  patriotic 
sacrifice  of  it  to  his  government,  as  a  merit  for  her  favorable  con- 
sideration of  himself  and  family.  And  we  may  add  that  his  only  son, 
an  officer  in  the  French  navy,  and  who  died  in  1808,  at  the  age  of  fifty- 
five,  also  never  set  up  any  claim  or  right  to  it  to  this  government,  and 
the  first  notice  she  had  of  it,  so  far  as  the  record  discloses,  was  in  1824 
or  1825,  from  the  descendants  of  this  son  residing  in  the  Island  Guada- 
loupe,  and  who  are  the  complainants  in  the  suit.^ 

The  purposes  for  which  this  grant  was  made,  and  the  conditions 
annexed  to  it,  are  specifically  stated  upon  its  face.  It  recites  tliat 
Repentigny  and  De  Bonne — entertaining  the  purpose  of  establishing 
a  seigniory  —  had  cast  their  eyes  upon  a  place  called  the  Saut  Ste. 

1  That  part  of  the  opinion  dealing  with  the  moiety  claimed  under  De  Bonne  is 
omitted.  —  Ed. 


102  STATES.  [part  I. 

Marie  ;  that  a  settlement  in  that  place  would  be  most  useful  for  voy- 
ageurs  from  the  neighboring  ports  and  those  from  the  western  sea, 
who  could  there  find  a  safe  retreat,  and  by  proper  precautions,  which 
the  petitioners  proposed  to  take,  would  destroy  in  those  parts  the  trade 
of  Indians  with  the  English ;  and  (after  the  words  of  concession  of 
six  leagues  in  front  on  the  river  at  the  Saut,  and  six  in  depth)  it  pro- 
vides that  the  grantees  shall  hold  and  possess  the  same  by  themselves, 
and  cause  the  same  to  be  held  and  possessed  by  their  tenants,  and 
cause  all  others  to  desert  and  give  up  the  land,  and  "  in  default  thereof 
the  present  concession  shall  be  and  shall  remain  null."  In  the  deed 
of  confirmation,  by  the  king,  is  the  following  clause  :  "That  they  (the 
grantees)  improve  the  said  concession,  and  use  and  occupy  the  same 
by  their  tenants.  In  default  thereof  the  same  shall  be  reunited  to 
his  majesty's  domain;"  and,  in  a  subsequent  clause:  "His  majesty 
ordering  that  the  said  concession  shall  be  subject  to  the  conditions 
above  expressed,  without  any  pretext  that  they  shovild  not  have  been 
stipulated  in  the  said  concession." 

There  is  a  letter  in  the  record  from  the  Governor-General  of  Canada, 
under  date  of  October  5,  1771,  to  the  government  at  Paris,  giving  the 
reasons  for  this  concession.  He  writes  :  "  I  had  the  honor  to  let  you 
know  (by  a  former  letter)  that  in  order  to  thwart  the  movements  that 
the  English  do  not  cease  to  make  to  seduce  the  Indian  nations  of  the 
north,  I  had  sent  Sr.  Chevalier  Kepentigny  to  the  Saut  of  Ste.  Marie, 
to  make  there  an  establishment  at  his  own  expense,  and  to  build  a 
palisade  fort  to  stop  the  Indians  of  the  northern  posts,  who  go  to  and 
from  the  English,  to  intercept  the  commerce  they  carry  on,  and  to 
stop  and  prevent  the  talks,  and  also  the  presents  which  the  English 
send  these  nations  to  corrupt  them  and  get  them  in  their  interests. 
Moreover,  I  had  in  view  in  that  establishment  to  secure  a  retreat  to 
the  French  voyageurs,  especially  those  who  trade  in  the  northern  parts, 
and  for  the  purpose  to  clear  the  lands  which  are  proper  for  the  pro- 
duction of  Indian  corn,  and  to  sustain  thereby  the  victualling  the 
people  of  the  said  post,  and  even  to  the  needs  of  the  voyageurs." 

And  in  a  letter,  by  the  minister  at  Paris,  to  a  high  official  in  Canada, 
be  alludes  to  that  of  the  governor  above  referred  to,  and  observes, 
"  In  one  of  my  despatches  last  year  to  the  governor,  I  had  intimated 
to  him  that  I  had  approved  the  construction  of  a  fort  at  the  Saut  of 
Ste.  Marie,  and  the  project  of  cultivating  the  land  there,  and  raising 
cattle.  We  cannot  but  approve  the  dispositions  which  have  been  made 
for  the  execution  of  that  establishment,  but  it  must  be  considered  that 
the  cultivation  of  the  lands,  and  the  multiplication  of  cattle  must  be 
the  principal  object,  and  that  trade  must  be  only  accessory.  As  it  can 
liardly  be  expected,  he  observes,  that  any  other  grain  than  corn  will 


CHAP,  I.]  THE    UNITED    STATES    V.    REPENTIGNY.  103 

grow  there,  it  is  necessary,  at  least  for  a  while,  to  stick  to  it,  and  not 
to  persevere  stubbornly  in  trying  to  raise  wheat." 

The  purposes  and  conditions  of  the  grant  are  too  obvious  to  require 
further  comment. 

It  is  admitted  by  the  learned  and  intelligent  jurists  of  Canada,  who 
have  been  examined  as  witnesses  in  this  case,  that  the  legal  liabilities 
to  seignioral  reunion  to  the  royal  domain  exists  in  cases  of  the  non- 
fulfilment  of  the  conditions  of  settlement,  and  which  is  rigorously 
enforced  if  there  be  no  cleared  lands  and  no  settlers  on  the  seigniory. 
That  the  right  to  resume  the  grant  applies  only  to  unimproved  seign- 
iories, to  all  those  that  have  been  neglected,  as  it  respects  the  estab- 
lishment of  tenants  upon  the  lands,  and  the  consequent  absence  of 
cultivation,  such  as  clearing  the  forests,  converting  them  into  fruitful 
fields,  laying  out  and  working  public  roads,  building  mills  for  the 
convenience  of  the  tenants,  and  the  like. 

We  agree  to  this  interpretation  of  the  conditions.  "We  cannot, 
however,  assent  to  the  next  position  taken,  namely,  that  the  posses- 
sion and  improvement  of  Repentigny,  during  the  four  years  that  he 
occupied  the  seigniory  at  the  Saut,  should  be  regarded  as  a  fulfilment 
of  this  condition.  It  contained  over  two  hundred  thousand  acres  of 
land,  and  the  whole  of  the  improvements  claimed  in  his  behalf,  besides 
the  stockade  fort,  consisted  in  the  erection  of  three  or  four  temporary 
huts  for  laborers,  the  clearing  of  a  few  acres  of  land  around  the  fort, 
and  planting  the  same  with  Indian  corn.  His  stock  consisted  of  seven 
head  of  cattle  and  two  horses,  and,  since  1754,  over  a  century  before 
the  commencement  of  this  suit,  there  has  been  no  possession  or  occu- 
pancy by  either  of  the  grantees,  or  their  descendants,  tenants,  or 
assigns,  or  further  trace  of  improvements.  The  primeval  forest  re- 
mained unbroken  till  settlers  entered  upon  it  and  established  them- 
selves under  the  protection  of  the  laws,  and  regulations  in  pursuance 
thereof,  of  the  United  States. 

The  United  States  succeeded  to  all  the  rights  to  this  territory  that 
existed  in  the  King  of  France,  under  the  treaty  of  1783,  with  Great 
Britain,  at  the  close  of  the  Revolution.  The  United  States  then 
became  the  lord  paramount  of  this  seigniory,  and  were  thereby  invested 
with  the  power  to  deal  with  the  seigniorial  estate,  the  same  as  the 
King-  of  France,  had  it  continued  under  his  dominion  ;  and  we  agree 
that  before  a  forfeiture  or  reunion  with  the  public  domain  could  take 
place,  a  judicial  inquiry  should  be  instituted,  or,  in  the  technical  lan- 
guage of  the  common  law,  office  found,  or  its  legal  equivalent.  A 
legislative  act,  directing  the  possession  and  appropriation  of  the  land, 
is  equivalent  to  office  found.  The  mode  of  asserting  or  of  assuming 
the  forfeited  grant,  is  subject  to  the  legislative  authority  of  the  gov- 


104  STATES.  [part  I. 

eminent.  It  may  be  after  judicial  investigation,  or  by  taking  posses- 
sion directly,  under  the  authority  of  the  government,  without  these 
preliminary  proceedings.  Fairfax  v.  Hunter,  7  Cranch,  603,  622,  631  ; 
Smith  V.  Maryland,  6  id.  286.  In  the  present  instance  we  have  seen 
the  laws  have  been  extended  over  this  tract,  the  lands  surveyed,  and 
put  on  sale,  and  confirmed  to  the  occupants  or  purchasers,  and,  in  the 
meantime,  an  opportunity  given  to  all  settlers  and  claimants  to  come 
in  before  a  board  of  commissioners  and  exhibit  their  claims.  This  is 
a  legislative  equivalent  for  the  reunion  by  office  found. 

Upon  the  whole  we  are  quite  satisfied  that,  consistent  with  the 
principles,  in  the  light  of  which  we  are  directed  by  the  act  of  Congress 
to  examine  into  the  validity  of  this  title,  the  complainants  have  failed 
to  establish  it.  We  have  felt  justified  in  applying  to  the  case  these 
principles  with  reasonable  strictness  and  particularity,  as  it  is  nearly, 
if  not  wholly,  destitute  of  merit. 

Decree  of  the  court  below  reversed,  and  case  remanded  with  di- 
rections to  Dismiss  the  bill.^ 


(c)  Effect  on  Law.^ 

BLANKARD  v.    GALDY. 
King's  Bench,  1693. 

(2  Salkeld,  All.) 

In  debt  on  a  bond,  the  defendant  prayed  oyer  of  the  condition,  and 
pleaded  the  statute  E.  6,  against  buying  offices  concerning  the  admin- 
istration of  justice  ;  and  averred.  That  this  bond  was  given  for  the 
purchase  of  the  office  of  provost-marshal  in  Jamaica,  and  that  it  con- 
cerned the  administration  of  justice,  and  that  Jamaica  is  part  of  the 
revenue  and  possessions  of  the  Crown  of  England  :  The  plaintiff  replied, 
that  Jamaica  is  an  island  beyond  the  seas,  which  was  conquered  from 
the  Indians  and  Spaniards  in  Queen  Elizabeth's  time,  and  the  inhabi- 
tants are  governed  by  their  own  laws,  and  not  by  the  laws  of  England : 
The  defendant  rejoined.  That  before  such  conquest  they  were  governed 
by  their  own  laws ;  but  since  that,  by  the  laws  of  England  :  Shower 

1  This  case  has  been  repeatedly  cited  and  approved  by  the  Supreme  Court,  most 
forcibly  and  aptly  perliaps  in  New  York  Indidns  v.  U.  S.,  1897,  1,25.  For  the  ques- 
tion of  citizenship  of  inhabitants  of  the  provinces  ceded  by  Spain  to  United  States  in 
consequence  of  the  recent  Spanish-American  war,  see  Art.  IX.,  of  the  Treaty  of  Paris, 
1898,  and  Magoon's  Military  Occupation,  173-177. — Ed. 

2  The  cases  and  notes  in  this  subsection  are  through  the  courtesy  of  Professor 
Beale  printed  from  his  Cases  on  the  Conflict  of  Laws  (1900),  vol.  1,  pp.  G5-84.  —  Ed. 


CHAP.  I.]  BLANKARD   V.   GALDY.  105 

argued  for  the  plaintiff,  that  on  a  judgment  in  Jamaica,  no  writ  of 
error  lies  here,  but  only  an  appeal  to  the  Council;  and  as  they  are 
not  represented  in  our  Parliament,  so  they  are  not  bound  by  our  stat- 
utes, unless  specially  named.  Vide  And.  115.  Femberton  contra 
argued,  that  by  the  conquest  of  a  nation,  its  liberties,  rights,  and  prop- 
erties are  quite  lost ;  that  by  consequence  their  laws  are  lost  too,  for 
the  law  is  but  the  rule  and  guard  of  the  other;  those  that  conquer  can- 
not by  their  victory  lose  their  laws,  and  become  subject  to  others. 
Vide  Vaugh.  405.  That  error  lies  here  upon  a  judgment  in  Jamaica, 
which  could  not  be  if  they  were  not  under  the  same  law.  Etiier  Holt, 
C.  J.  &  Cur.  — 

First,  in  case  of  an  uninhabited  country  newly  found  out  by  English 
subjects,  all  laws  in  force  in  England  are  in  force  there  ;  so  it  seemed 
to  be  agreed. 

Secondly,- Jamaica  being  conquered,  and  not  pleaded  to  be  parcel  of 
the  kingdom  of  England,  but  part  of  the  possessions  and  revenue  of 
the  Crown  of  England,  the  laws  of  England  did  not  take  place  there, 
until  declared  so  by  the  conqueror  or  his  successors.  The  Isle  of  Man 
and  Ireland  are  part  of  the  possessions  of  the  Crown  of  England  ;  yet 
retain  their  ancient  laws :  That  in  Davis,  36,  it  is  not  pretended  that 
the  custom  of  tanistry  was  determined  by  the  conquest  of  Ireland,  but 
by  the  new  settlement  made  tliere  after  the  conquest :  That  it  was  im- 
possible the  laws  of  this  nation,  by  mere  conquest,  without  more, 
should  take  place  in  a  conquered  country ;  because,  for  a  time,  there 
must  want  officers,  without  which  our  laws  can  have  no  force :  That  if 
our  law  did  take  place,  yet  they  in  Jamaica  having  power  to  make  new 
laws,  our  general  laws  may  be  altered  by  theirs  in  particulars ;  also 
they  held,  that  in  the  case  of  an  infidel  country,  their  laws  by  conquest 
do  not  entirely  cease,  but  only  such  as  are  against  the  law  of  God  ;  and 
that  in  such  cases  where  the  laws  are  rejected  or  silent,  the  conquered 
country  shall  be  governed  according  to  the  rule  of  natural  equity. 

Judgment  pro  quer} 

^  Another  report  of  tlie  same  case  may  be  found  in  4  Mod.  222.  In  that  case  the 
court  is  reported  to  have  said  :  "  And  therefore  it  was  held,  tliat  Jamaica  was  not  gov- 
erned by  the  laws  of  England  after  the  conquest  thereof,  till  new  laws  were  made :  for 
they  had  neitlier  sheriff  nor  counties  ;  they  were  only  an  assembly  of  people  which  are 
not  bound  by  our  laws,  unless  particularly  mentioned.  In  Barbadoes  all  freeholds  are 
subject  to  debts,  and  are  esteemed  as  chattels  till  the  creditors  are  satisfied,  and  then 
the  lands  descend  to  an  heir;  but  the  law  is  otherwise  here;  which  shows  that  thougli 
that  island  is  parcel  of  the  possessions  of  England,  yet  it  is  not  governed  by  the  laws 
made  here,  but  by  their  own  particular  laws  and  customs." 

Ace.  Earl  Derby's  Case,  2  And.  116;  Mem.  2  P.  Wms.  75.  See  Cross  v.  Harrison, 
16  How.  164;    Airhart  v.  Massieu,  98  U.  S.  491.  — En. 

For  the  effect  of  settlement  of  India  on  Hindoo,  and  the  introduction  of  English 


106  STATES.  [part  I. 

Emerson,  J.,  in  First  National  Bank  v.  Kinner,  1  Utah,  100  (1873). 
In  A/nerican  Ins.  Co.  v.  Canter,  1  Pet.  511,  the  court,  by  Judge  Mar- 
shall, say  substantialh',  that  the  laws  of  Florida,  as  they  were  when 
the  Territory  was  ceded,  so  far  as  not  inconsistent  with  the  Consti- 
tution and  Laws  of  the  United  States,  continued  in  force  until  altered 
by  the  newly  created  power  of  the  State.  (See,  also,  United  States  v. 
Poiaers,   11   How.  570 ;  Strothers   v.    Lucas,  12  Pet.  410,  436.)     This 

law,  see  Advocate- General  v.  Ranee  Surnomoye  Dossee,  1863,  2  Moore's  P.  C,  N.  s.,  22. 
(Beale,  67). 

In  considering  wlietiier  and  in  how  far  tlie  common  law  of  England  was  introduced 
into  and  became  a  part  of  the  law  of  the  colonies  (Massachusetts)  Chief  Justice  Shaw 
says  : 

"  We  do  not  accede  to  the  proposition,  that  tiie  present  existence  and  effect  of  the 
whole  body  of  law,  which  existed  before  the  Constitution,  depends  solely  upon  this 
provision  of  it.  We  take  it  to  be  a  well-settled  principle,  acknowledged  by  all  civilized 
states  governed  by  law,  that  by  means  of  a  political  revolution,  by  which  the  political 
organization  is  changed,  the  municipal  laws,  regulating  their  social  relations,  duties, 
and  riglits,  are  not  necessarily  abrogated.  Tiiey  remain  in  force,  except  so  far  as  they 
are  repealed  or  modified  by  the  new  sovereign  autiiority.  Indeed,  the  existence  of 
this  body  of  laws,  and  the  social  and  personal  rights  dependent  upon  them,  from  1776, 
when  the  Declaration  of  Independence  was  made,  and  our  political  revolution  took 
place,  to  1780,  when  this  Constitution  was  adopted,  depend  on  this  principle.  The 
clause  in  the  Constitution,  therefore,  though  highly  proper  and  expedient  to  remove 
doubts,  and  give  greater  assurance  to  the  cautious  and  timid,  was  not  necessary  to 
preserve  all  prior  laws  in  force,  and  was  rather  declaratory  of  an  existing  rule,  than  the 
enactment  of  a  new  one.  We  think,  therefore,  it  should  have  such  a  construction  as 
best  to  carry  into  effect  the  great  principle  it  was  intended  to  establish. 

"  Wlien  our  ancestors  first  settled  this  country,  they  came  here  as  English  subjects; 
they  settled  on  the  land  as  English  territory,  constituting  part  of  the  realm  of  England 
and  of  course  governed  by  its  laws  ;  they  accepted  charters  from  the  English  govern- 
ment, conferring  botii  political  powers  and  civil  privileges ;  and  tii^y  never  ceased  to 
acknowledge  themselves  English  subjects,  and  never  ceased  to  claim  the  rights  and 
privileges  of  English  subjects,  till  the  revolution.  It  is  not,  therefore,  perhaps,  so 
accurate  to  say  that  they  established  the  laws  of  England  here,  as  to  say,  that  they 
were  subject  to  the  laws  of  England.  Wlien  they  left  one  portion  of  its  territory  they 
were  alike  subject  on  their  transit  and  when  they  arrived  at  another  portion  of  the 
English  territory  ;  and  therefore  always,  till  the  Declaration  of  Independence,  they 
were  governed  and  protected  by  the  laws  of  England,  so  far  as  those  laws  were  ap- 
plicable to  their  state  and  condition.  Under  this  category  must  come  all  municipal 
laws  regulating  and  securing  the  rights  of  real  and  personal  property,  of  person  and 
personal  liberty,  of  habitation,  of  reputation  and  character,  and  of  peace.  The  laws 
designed  for  the  protection  of  reputation  and  character,  and  to  prevent  private  quar- 
rels, affrays,  and  breaches  of  peace,  by  punishing  malicious  libel,  were  as  important 
and  as  applicable  to  the  state  and  condition  of  the  colonists  as  the  law  punishing 
violations  of  tlie  rights  of  property,  of  person,  or  of  habitation ;  that  is,  as  laws  for 
punishing  larceny,  assault  and  battery,  or  burglary.  Being  part  of  the  common  law 
of  England,  applicable  to  the  state  and  condition  of  the  colonists,  they  necessarily 
applied  to  all  English  subjects  and  territories,  as  well  in  America  as  in  Great  Britain, 
and  so  continued  applicable  till  the  Declaration  of  Independence."  {CommoniceaUh  v. 
Chapman,  1848,  13  Met.  68;  Beale,  72-76.)  — Eu. 


CHAP.  I.]  BLANKARD   V.   GALDY.  107 

appears  to  be  the  settled  doctrine  in  regard  to  conquered  and  ceded 
Territory  in  the  absence  of  special  treaty  stipulation.  It  applies  to 
territory  acquired  from  Mexico,  since  the  treaty  of  Guadaloupe  made 
no  special  provision  on  the  subject.  Utah  was  embraced  in  that  ac- 
quisition. As  in  Florida  the  pre-existing  law  was  Spanish,  so  in  Utah, 
it  was  Mexican,  and  in  both  cases  the  laws  were  derived  mainly  from 
the  laws  of  Home.  In  neither  did  the  English  common  law,  or  the 
Statute  of  Frauds,  prevail.  Congress  made  no  special  change,  and 
the  Territorial  Legislature,  upon  whom  authority  was  conferred,  have 
made  no  express  enactment  upon  the  subject. 

This  Territory  was  first  settled  in  IStT,  and  from  that  time  up  to  the 
acquisition  and  treaty  in  1848,  the  settlers  were  comparatively  few  in 
number.  There  were  no  settled  laws,  usages,  and  customs  among 
them.  They  came  here  as  American  citizens,  under  the  flag,  and 
claiming  the  protection  of  the  United  States  Government. 

The  particular  class  of  persons  forming  the  great,  if  not  the 
entire  bulk  of  emigrants,  claim  to  have  furnished  troops  from  among 
their  own  numbers  to  assist  this  Government  in  its  war  against 
Mexico. 

At  the  time  of  the  acquisition  and  treaty  they  could  not  claim  Mexi- 
can citizenship,  and  have  never  adopted  its  laws  and  customs. 

Soon  after  the  change  of  sovereignty  by  the  treaty,  emigrants  in 
large  numbers  flocked  in  from  the  States  and  surrounding  Territories, 
and  for  many  years  there  has  been  an  organized  community. 

"When  we  turn  to  the  communities  from  whence  the  emigrants  pro- 
ceeded, we  find  that  the}'  differed  one  from  another,  more  or  less,  in 
regard  to  their  laws  and  institutions.  No  two  are  alike.  In  the  most, 
it  is  true,  many  common-law  principles  and  doctrines  were  in  force. 
Still,  the  body  of  the  common  law  in  each  was  peculiar  to  the  particular 
State,  and  it  was  rather  the  common  law  of  the  State  than  the  English 
common  law.  In  some,  the  English  statutes  had  been  received  as 
common  law  ;    in  others,  not. 

These  diversities  make  it  impossible  to  assume  that  any  specific  body 
of  the  common  law  was  transplanted  to  the  Territory  by  the  fact  of 
immigration. 

But  one  course  was  open,  and  that  was  for  the  whole  body  of  the 
people  to  agree,  expressly  or  tacitly,  upon  a  common  measure.  It  was 
to  be  expected  that  the  emigrants  would  not  be  contented  with  the 
loose  and  alien  institutions  of  an  outlying  Mexican  department,  and 
they  have  not  been. 

They  have  tacitly  agreed  upon  maxims  and  principles  of  the  common 
law  suited  to  their  conditions  and  consistent  with  the  Constitution  and 
laws  of  the  United  States,  and  they  only  wait  recognition  by  the  courts 


108  STATES.  [part  I. 

to  become  the  common  law  of  the  Territory.  "When  so  recognized, 
they  are  laws  as  certainly  as  if  expressly  adopted  by  the  law-making 
power. 


CHAPPELL  V.  JAPvDIXE. 
Supreme  Coukt  of  Errors  of  Coxnecticut,  1884. 

{Reported  51    Connecticut,  G4.) 

Park,  C.  J.^  This  is  a  suit  for  the  foreclosure  of  certain  mortgaged 
premises,  constituting  an  island,  known  as  Earn  Island,  in  Long  Island 
Sound.  The  complaint  alleges  that  the  land  mortgaged,  at  the  time 
the  deed  was  given,  lay  in  the  town  of  Southhold,  Suffolk  County,  in 
the  State  of  New  York,  and  it  is  averred  that  the  mortgage  was  re- 
corded in  the  office  of  the  clerk  of  Suffolk  County  in  that  State.  It  is 
further  alleged  that  Earn  Island,  by  the  recent  establishment  of  the 
boundary  line  between  the  State  of  Xew  York  and  this  State,  has 
become  a  part  of  the  town  of  Stonington  in  this  State.  The  complaint 
is  demurred  to,  so  that  the  averment  stands  admitted  that  the  island 
was,  when  the  mortgage  was  made,  a  part  of  the  State  of  Xew  York. 

We  have  heretofore  held  {Elphick  v.  Hoffman^  49  Conn.  331)  that 
the  boundary  agreed  upon  by  the  joint  commission  of  the  two  States 
and  established  by  the  legislative  acceptance  of  both  States,  was  to  be 
regarded  as  presumably  a  designation  and  establishment  of  the  pre- 
existing boundary  line  which  had  become  lost,  and  not  as  the  establish- 
ment of  a  new  line,  leaving  the  matter  open  to  proof  in  special  cases. 
If  we  should  apply  that  rule  here,  and  consider  the  island  in  question 
as  having  been  legally  a  part  of  this  State  when  the  mortgage  was 
made,  we  should  at  once  encounter  another  question  of  a  serious  nature. 
There  can  be  no  question  that  whatever  has  been  the  de  jure  jurisdic- 
tion over  the  island,  it  has  been  for  many  years  within  the  de  facto 
jurisdiction  of  the  State  of  Xew  York;  and  we  should  be  compelled 
to  determine  the  legal  effect  upon  this  mortgage  of  that  de  facto 
jurisdiction. 

We  have  thought  it  as  well,  therefore,  to  take  the  case  as  the  parties 
have  themselves  presented  it,  the  plaintiff  by  the  averments  of  his  com- 
plaint and  the  defendants  by  the  admissions  of  their  demurrer,  and 
regard  the  island  in  question  as  having  been  within  the  State  of  New 
York  when  the  mortgage  was  made,  and  afterwards  brought  within 
this  State  by  the  establishment  of  the   boundary  line.     Indeed,  as  the 

^  Part  of  the  opinion  is  omitted.  —  Ed. 


CHAP.  I.]  CHAPPELL   V.   JARDINE.  109 

proceeding  is  in  error,  we  cannot  properly  govern  ourselves  by  anything 
but  the  record  as  it  comes  before  us. 

And  in  treating  the  island  as  within  the  State  of  Xew  York  when  the 
mortgage  was  made  we  are  regarding  the  contract  and  the  right  of 
the  parties  under  it,  precisely  as  they  themselves  understood  them  at 
the  time. 

The  mortgaged  premises  having  been  in  the  State  of  New  York  when 
the  mortgage  was  made,  it  is  of  course  to  be  governed  in  its  construc- 
tion and  effect  b}'  the  laws  of  that  State  then  in  force.  In  McCormick 
V.  SuUivayi,  10  Wheat.  192,  the  court  say :  "  It  is  an  acknowledged 
principle  of  law  that  the  title  and  disposition  of  real  property  is  exclu- 
sively subject  to  the  laws  of  the  country  where  it  is  situated,  which  can 
alone  prescribe  the  mode  by  which  a  title  to  it  can  pass  from  one  per- 
son to  another."  The  same  doctrine  is  held  in  United  States  v.  Crosbij, 
7  Cranch,  115,  Kerr  v.  3Iooti,  9  Wheat.  565,  Darby  v.  Mayer,  10  id. 
465,  and  in  many  other  cases.  Indeed  the  doctrine  is  unquestioned 
law  everywhere. 

]S"ow,  according  to  the  laws  of  the  State  of  iS"ew  York  then  and  still 
in  force,  a  mortgage  of  real  estate  creates  a  mere  chose  in  action,  a 
pledge,  a  security  for  the  debt.  It  conveys  no  title  to  the  property. 
The  claim  of  the  mortgagee  is  a  mere  chattel  interest.  He  has  no  right 
to  the  possession  of  the  property.  The  title  and  seisin  remain  in  the 
mortgagor,  and  he  can  maintain  trespass  and  ejectment  against  the 
mortgagee,  if  he  takes  possession  of  the  property  witliout  the  consent 
of  the  mortgagor.     This  appears  clearly  from  the  following  cases.^ 

It  follows,  therefore,  that  while  the  land  in  question  remained  in  the 
State  of  New  York,  it  was  incumbered  by  a  mortgage  of  this  character  ; 
and  when  it  came  into  this  State  it  bore  with  it  the  same  burden  pre- 
cisely. There  was  nothing  in  the  change  of  jurisdiction  that  could 
affect  the  contract  of  mortgage  that  had  been  made  between  the  parties. 
The  title  to  the  property  continued  to  remain  in  the  mortgagor,  and  it 
remains  in  him  still.  This  is  clear.  The  laws  of  this  State  could  not 
make  a  new  contract  for  the  parties  or  add  to  one  already  made.  They 
had  to  take  the  contract  as  they  found  it. 

Now,  it  is  clear  that  there  is  no  remedy  by  way  of  foreclosure  known 
to  our  law  which  is  adapted  or  appropriate  to  giving  relief  on  a  mort- 
gage of  this  character.  Our  remedy  is  adapted  to  a  mortgage  deed 
which  conveys  the  title  of  the  property  to  the  mortgagee,  and  when  the 
law  day  has  passed,  the  forfeiture,  stated  in  the  deed,  becomes  absolute 

1  The  leiirned  judge  here  cited  and  discussed  tlie  following  cases  :  Gardner  v.  Heartt, 
3  Den.  232;  Power  v.  Lester,  23  N.  Y.  527;  Timm  v.  Marsh,  54  N.  Y.  599;  Jackson 
V.  WiHard,  4  Johns.  42;  Astor  \.  Hont,  5  Wend.  603;  Korlright  v.  Cady,  21  N.  Y- 
343;  Merritt  v.  Bartholkk,  36  N.  Y.  44. —Ed. 


110  STATES.  [part  T. 

at  law,  and  vests  a  full  and  complete  title  in  the  mortgagee,  with  the 
exception  of  the  equitable  right  of  redemption,  which  still  remains  in 
the  mortgagor.  The  object  of  the  decree  of  foreclosure  is,  to  extin- 
guish this  right  of  redemption  if  the  mortgage  debt  is  not  paid  by  a 
specified  time.  The  decree  acts  upon  this  right  only.  It  conveys 
nothing  to  and.  decrees  nothing  in  the  mortgage  if  the  debt  is  not  paid. 
After  the  law  day  has  passed  the  right  of  redemption  becomes  a  mere 
cloud  on  the  title  the  mortgagee  then  has,  and  when  it  is  removed  his 
title  becomes  clear  and  perfect.  Phelps  v.  Sage,  2  Day,  151 ;  Roath 
V.  Smith,  5  Conn.  136;  Chamberlin  v.  Thompson,  10  id.  214;  Porter 
V.  Seeley^  13  id.,  564  ;  Smith  v.  Vincent,  12  id.,  1 ;  Doton  v.  Russell, 
17  id.  151 ;  Cross  v.  Robinson,  21  id.  379 ;  Dudley  v.  Caldwell,  19  id. 
218  ;   Colwell  v.    Warner,  36  id.   224. 

"What  effect  would  such  a  decree  produce  upon  a  mortgage  like  the 
one  under  consideration,  where  the  legal  title  remains  in  the  mortgagor, 
and  nothing  but  a  pledgee's  interest  is  in  the  mortgagee,  even  after  the 
debt  becomes  due  ?  It  could  only  extinguish  the  right  of  redemption, 
if  it  could  do  that.  It  could  not  give  the  mortgagee  the  right  of  pos- 
session of  the  property,  for  the  mortgagor  has  still  the  Legal  title,  which 
carries  with  it  the  right  of  possession.  It  would  require  another  pro- 
ceeding in  equit}^  to  say  the  least,  to  dispossess  him  of  that  title,  and 
vest  it  in  the  mortgagee.  Hence  it  is  clear  that  full  redress  cannot  be 
given  the  plaintiff  in  this  proceeding. 

But  the  plaintiff  has  a  lien  on  the  property  in  the  nature  of  a  pledge 
to  secure  payment  of  the  mortgage  debt.  And  although  our  remedy  of 
strict  foreclosure  may  not  be  adapted  to  give  redress  to  the  plaintiff 
through  the  medium  of  such  a  lien,  still  a  court  of  equity  can  devise  a 
mode  that  will  be  appropriate ;  for  it  would  be  strange  if  a  lawful  lien 
upon  property  to  secure  a  debt  could  not  be  enforced  according  to  its 
tenor  by  a  court  of  chancery.  It  is  said  that  every  wrong  has  its 
remedy ;  so  it  may  be  said  that  every  case  requiring  equitable  relief 
has  its  corresponding  mode  of  redress.  We  have  no  doubt  that  a  court 
of  equity  has  the  power  to  subject  the  property  in  question  to  the  pay- 
ment of  this  debt,  upon  a  proper  complaint  adapted  to  the  purpose. 
"When  personal  property  is  pledged  to  secure  the  payment  of  a  debt,  it 
may  be  taken  and  sold,  that  payment  may  be  made,  after  giving  the 
pledgor  a  reasonable  opportunity  for  redemption.  So  here,  we  think 
a  similar  course  might  be  taken  witli  this  property.  Such  a  course 
would  fall  in  with  the  original  intent  of  the  parties,  and  with  the  civil 
code  and  mode  of  procedure  of  the  State  of  New  York.  !Modes  of 
redress  in  that  State  have  of  course  no  force  in  this  State,  but  such  a 
mode  of  procedure  seems  to  be  adapted  to  a  case  of  this  character. 

And  we  further  think  that  on  an  amended  complaint,  setting  forth 


CHAP.  I.]     MORTIMER  V.  NEW  YORK  ELEVATED  RAILROAD  CO.     Ill 

all  the  essential  facts,  and  praying  tliat  if  there  shall  be  a  default  in 
redeeming  the  property  during  such  time  as  the  court  shall  allow  for 
redemption,  then  the  right  of  redemption  shall  be  forev^er  foreclosed, 
and  the  legal  title  and  possession  of  the  property  be  decreed  in  the 
mortgage,  such  course  might  be  taken. 

We  think  either  of  the  modes  suggested  might  be  pursued  ;  but  inas- 
much as  the  course  which  has  been  taken  leaves  the  legal  title  and  pos- 
session of  the  property  in  the  mortgagor,  we  think  the  court  erred  in 
holding  the  complaint  sufficient,  and  in  passing  the  decree  thereon. 

There  is  error  in  the  judgment  appealed  from,  and  it  is  reversed,  and 
the  case  remanded. 
-    In  this  opinion  the  other  judges  concurred. 


MORTIMER   V.   NEW   YORK  ELEVATED  RAILROAD  CO. 
Superior  Court  of  the  City  of  New  York,  1889. 

{Reported  6  New  York  Supplement,  898.) 

Ereedman,  J.  The  claim  made  in  this  case  by  and  on  behalf  of 
the  elevated  railway  companies  is  that  the  absolute  fee  of  the  street 
known  as  the  '•  Bowery  "  was,  prior  to  the  surrender  of  the  Dutch 
forces  to  the  English  in  1664,  in  the  Dutch  government;  that  such 
fee  thereafter  went  to  the  State  or  to  the  city  of  New  York  so  abso- 
lutely that  abutting  owners  never  had,  and  do  not  now  have,  any  ease- 
ment of  any  kind  in  said  street,  and  that,  the  elevated  railway  running 
through  the  Bowery  having  been  constructed  with  the  consent  of  both 
the  city  and  the  State,  neither  its  owners  nor  its  lessees  are  liable  for 
any  injury  inflicted  upon  abutting  property  by  reason  of  the  construc- 
tion and  operation  of  the  railway. 

The  claim  of  the  English  that  they  were  the  owners,  by  right  of 
discovery,  under  governmental  authority,  of  the  land  of  which  the 
present  city  of  New  York  forms  a  part,  and  that  this  gave  them  such 
exclusive  ownership  that  the  Dutch  government  acquired  no  title  to 
the  land  which  can  be  recognized,  has  been  fully  set  forth  in  the  opin- 
ion of  Judge  Truax.  I  concur  in  his  remarks  as  far  as  they  go,  but 
wish  to  add  the  following,  viz. :  — 

The  claim  of  the  English,  it  is  true,  has  occasionally  been  criticised 
on  the  ground  that  neither  of  the  Cabots  landed  in  or  near  New  York, 
or  saw  the  coast  of  New  York.  The  right  of  discovery  is  not  recog- 
nized in  the  Roman  law  unless  followed  by  occupation,  or  unless  the 
intention  of  the  sovereign  or  State  to  take  possession  be  declared  or 
made  known  to  the  world.      And  it  must  be    conceded  that  modern 


112  STATES.  [part  I. 

diplomatists  and  publicists  incline  to  the  opinion  that  mere  transient 
discovery  amounts  to  nothing  unless  followed  in  a  reasonable  time  by 
occupation  and  settlement,  more  or  less  permanent,  under  the  sanction 
of  the  State.  But  the  question  in  the  case  at  bar  is  not  to  be  decided 
according  to  the  rules  of  the  international  law  of  the  present  time.  It 
is  a  question  purely  between  the  public  authorities  of  the  State  of 
New  York  and  citizens  of  the  same  State,  and  as  such  it  is  controlled 
by  the  decisions  referred  to  by  Judge  Truax,  to  the  effect  that 
what  the  English  did  do  was  sufficient  to  give  them  title  by  discovery, 
and  that  such  title  is  superior  to  the  Indian  title.  These  decisions 
proceeded  upon  the  theory  that  the  claim  of  the  Dutch  was  contested 
by  the  English  from  the  very  start,  not  because  they  questioned  the 
title  given  by  discovery,  but  because  they  insisted  on  being  themselves 
the  rightful  claimants  under  that  title;  and  that  the  claim  of  the 
English  was  finally  decided  in  their  favor  by  the  sword.  That  being 
so,  it  follows  that,  in  contemplation  of  present  law,  neither  the  Dutch 
nor  the  Eoman  law  ever  prevailed  in  the  State  of  New  York  de  jure 
and  that  the  common  law  of  England  must  be  deemed  to  be  the  origi- 
nal source  of  all  our  law.  And  it  further  follows  that  the  foundations 
of  the  rights  of  owners  of  land  abutting  on  a  street  laid  out  while  the 
Dutch  were  in  possession,  as  against  the  city  or  the  State  of  New  York, 
rest  upon  the  English  common  law,  and  that  they  are  not  to  be  affected 
by  the  Dutch  or  Roman  law. 

Reported  cases  in  which  the  validity  of  Dutch  grants  was  upheld 
between  individuals  have  no  application  to  the  present  controversy. 
Now,  under  the  English  common  law,  the  presumption  is  that  the 
owners  of  lands  lying  on  a  highway  are  the  owners  of  the  fee  of  the 
highway;  that  the  owners  on  each  side  of  the  highway  own  the  soil 
of  the  highway  in  fee  to  the  centre  of  the  highway  ;  and  that  the 
rights  of  the  public  in  and  to  the  highway  are  no  higher  or  other 
than  those  of  a  mere  easement.  Wager  v.  Railroad  Co.,  25  N.  Y.  529. 
This  presumption  applies  as  well  to  the  streets  of  a  city  as  to  a  country 
highway.  Bissell  v.  Railroad  Co.^  23  N.  Y.  61.  This  presumption 
of  law  is  founded  on  the  supposition  that  the  way  was  originally 
granted  by  the  adjoining  owners  in  equal  proportions.  Watrous  v. 
Southu'orth,  5  Conn.  305.  But  the  presumption  may  be  rebutted  by 
proof  to  the  contrary,  and  it  is  rebutted  by  the  production  of  a  deed 
under  which  the  owner  derives  title  granting  the  land  to  the  side  of 
the  street  only.  Under  the  operation  of  this  rule,  and  there  being  no 
proof  of  alienation  or  escheat  requiring  a  different  conclusion,  it  must 
be  assumed  in  this  case  that  the  original  grantors  from  whom  plaintiffs' 
title  has  been  derived  owned  the  soil  of  the  Bowery  in  front  of  the 
premises  in  suit  to  the  centre  of  the  street.     But  even  if  the  title  of 


CHAP.  I.]    MORTIMER  V.  NEW  YORK  ELEVATED  RAILROAD  CO.     113 

the  English  rested  not  in  discovery,  but  in  conquest,  and  the  English, 
upon  the  surrender  by  the  Dutch  in  1G64,  acquired  from  the  Dutch  a 
title  to  the  then  existing  streets  as  absolute  as  under  the  Roman  law 
the  title  of  the  government  to  a  military  highway  was,  the  fact  would 
not  improve  the  position  of  the  defendants.  Upon  receiving  such 
title  the  English  could  do  with  it  what  they  pleased.  They  were  not 
bound  to  enforce  it  against  abutting  owners,  as  tlie  Dutch  government 
might  have  enforced  it.  The  presumption  is  that  they  took  the  title 
and  the  streets  to  be  held  by  them  according  to  their  own  laws,  and 
as  matter  of  fact  they  thereafter  so  dealt  with  said  streets  as  to  admit 
of  no  other  conclusion.  The  province  having  been  granted  by  Charles 
II.  to  his  brother,  the  Duke  of  York,  by  the  charter  of  1664,  several 
months  before  the  surrender  to  Sir  Richard  Xicolls,  the  grant,"  in  order 
to  remove  all  doubt  as  to  its  validity,  was  afterwards  confirmed  by  the 
charter  of  1674,  also  granted  to  the  Duke  of  York.  The  object  of 
both  charters  was  to  enable  the  Duke  of  York  to  plant  a  colony  on  this 
continent.  The  charter  of  1664,  issued  under  the  great  seal  of  Eng- 
land, contained  a  provision  that  the  statutes,  ordinances,  &c.,  to  be 
established  by  the  Duke  in  the  new  country,  "  should  not  be  contrary 
to,  but  as  nearly  as  might  be  agreeable  to,  the  laws,  statutes,  and 
government  of  the  realm  of  England."  This  charter  was,  therefore, 
in  itself,  an  explicit  declaration  of  the  King's  will  that  the  laws  of 
England  should  be  established  in  the  colon}^,  and  that  the  laws  of  the 
Dutch  settlers  should  not  be  retained.  The  consequence  was  that, 
having  obtained  the  lands,  the  English  held  them,  not  under  the 
Dutch  or  the  civil  law,  but  under  the  common  law  of  their  own  coun- 
try. English  law  governed  English  land,  so  that,  even  if  an  absolute 
title  to  a  street  was  obtained,  the  street  was  ever  thereafter  treated  as 
an  English  street,  under  the  common  law.^ 

1  The  learned  judge  then  expressed  the  opinion  that  by  subsequent  acts  of  the  Pro- 
prietor and  of  the  State  tlie  city  lost  its  rights,  if  any,  to  the  legal  fee. 

In  his  concurring  opinion  Truax,  J.,  saitl :  "I  am  of  tlie  opinion  tliat  the  fee  of 
the  Bowery,  and  of  the  other  streets  in  the  city  of  New  York  that  are  known  as  Dutch 
streets,  never  was  in  the  Dutch  government;  and  that  it  was,  prior  to  the  Revolution, 
bound  by  the  rules  of  the  common  law,  and  not  by  the  rules  of  the  Dutch  civil  law. 
While  the  Dutch  were  in  actual  possession  this  execution  of  tlie  common  law  was 
suspended,  just  as,  during  the  late  rebellion,  this  execution  of  the  laws  of  the  United 
States  could  not  be  enforced  in  some  of  the  Southern  States.  But,  said  the  Supreme 
Court  of  the  United  States  in  Ketchum  v.  Buckley,  99  U.  S.,  188,  "  the  same  general 
form  of  government,  the  same  general  law  for  the  administration  of  justice,  and  the 
protection  of  private  rights  which  had  existed  in  the  States  prior  to  the  rebellion, 
remained  during  its  continuance  and  afterwards." 

See  Ketchum  v.  Buckley,  UO  U.  S.  188,  and  cases  cited.  —  Ed. 

8 


I 


114  STATES.  [part  I. 

McKENN^ON  V.    WINN. 
Supreme  Court  of  Oklahoma  Territory,  1893. 

(Reported  1  OLlaJioma  RepoTts,  327.) 

BuRFORD,  J.^  The  appellant  filed  his  complaint  in  the  court  below 
to  enforce  the  specific  performance  of  a  contract  for  the  conveyance  of 
real  estate  situated  in  Oklahoma  City,  Oklahoma  County,  Oklahoma 
Territory.  A  demurrer  was  filed  to  the  complaint,  alleging  as 
grounds:  First,  That  the  court  has  no  jurisdiction  of  the  person  of 
defendant,  or  the  subject  of  the  action.  Second.  That  the  complaint 
does  not  state  facts  sufficient  to  constitute  a  cause  of  action.  The 
demurrer  was  sustained,  to  which  the  appellant  excepted  and  brings 
the  case  to  this  court  by  appeal.  *  *  * 

The  second  ground  for  demurrer  presents  two  questions:  First. 
Can  a  parol  contract  for  the  conveyance  of  real  estate,  or  an  interest 
therein,  made  after  the  settlement  of  this  country,  and  prior  to  the 
adoption  of  our  organic  act,  be  enforced?  Second.  Is  a  contract  for 
the  conveyance  of  real  estate,  entered  into  before  title  is  acquired 
from  the  United  States,  and  to  be  executed  after  title  is  acquired, 
void,  as  against  public  policy? 

The  first  proposition  seems  to  be  settled  by  the  adjudicated  cases 
and  text  writers  in  favor  of  the  appellant.  "Every  contract,  on 
whatever  subject,  may  be  in  oral  words,  which  will  have  the  same 
effect  as  if  written,  except  when  some  positive  rule  of  the  common  or 
statutory  law  has  provided  otherwise."  Bish.  Cont.  sect.  153;  3Ial- 
lorijY.  Gillett,  21  N.  Y.  412;  Wyman  v.  Goodrich,  26  Wis.  21;  Green 
V.  Brookins,  23  Mich.  48;  White  v.  Maynard,  111  Mass.  250.  By 
the  common  law,  prior  to  the  enactment  of  the  Statute  of  Frauds  (29 
Car.  II.,  c.  3,  A.  D.  1676),  contracts  for  the  sale  of  real  estate,  or  an 
interest  therein,  were  not  required  to  be  in  writing.  Bish.  Cont., 
sect.  1231;  4  Kent  Com.,  p.  450.  The  English-speaking  people 
brought  the  common  law  to  America  with  them,  in  the  first  settle- 
ment of  the  colonies;  and  it  has  prevailed  in  all  the  States  and  Terri- 
tories, modified  by  legislative  acts,  local  conditions,  and  such  of  the 
English  statutes  adopted  prior  to  the  settlement  of  our  colonies  as 
were  of  general  application,  and  suited  to  our  conditions,  except  in 
some  portions  where  the  French  or  civil  law  prevailed.  At  the  time 
of  the  settlement  and  discovery  of  America  the  Statute  of  Frauds  had 

1  Part  of  the  opinion  is  omitted.  —  Ed. 


CHAP.  I.]  McKENNON    V.   WINN.  115 

not  been  adopted,  and  has  only  become  the  law  of  the  United  States, 
or  of  our  several  States  and  Territories,  by  legislative  enactment. 

This  leads  us  to  the  inquiry,  Did  the  common  law  prevail  in  the 
Territory  in  April,  1889?  It  is  contended  that  prior  to  the  settle- 
ment of  Oklahoma,  and  until  the  same  was  superseded  by  statutory 
laws,  the  Code  Napoleon,  or  civil  law,  prevailed.  Whatever  may 
have  been  the  laws  of  the  country  now  known  as  Oklahoma,  they 
ceased  to  operate  in  the  region  originally  comprising  the  Indian 
Territory  when  the  Territory  ceased  to  be  a  part  of  the  Territory  of 
Louisiana,  and  the  laws  of  the  Territory  of  Indiana  and  the  Territory 
of  Missouri,  which  may  have  once  prevailed  in  said  region,  became 
inoperative  in  and  ceased  to  have  any  force  or  effect  in  the  Indian 
Territory,  when  that  Territory  ceased  to  be  a  part  of  said  Territories. 
Railroad  Co,  v.  0^ LoughUn,  49  Fed.  Rep.  440.  There  was  no  law  in 
the  Indian  Territory  regulating  the  making  of  contracts  at  the  time 
of  the  approval  of  the  act  of  Congress  establishing  a  United  States 
district  court  in  said  Territory  by  the  act  of  March  1,  1889.  25  Stat. 
783.  Congress,  with  the  assent  of  the  Indians,  created  the  court  for 
the  whole  of  the  Indian  Territory,  which  included  Oklahoma,  and 
conferred  on  it  jurisdiction  in  all  civil  cases  between  citizens  of  the 
United  States  who  are  residents  of  the  Territory,  or  between  citizens 
of  the  United  States  or  of  any  State  or  Territory,  and  any  citizen  of, 
or  person  residing  or  found  in,  the  Indian  Territory.  It  gave  the 
court  authority,  and  imposed  upon  it  the  duty,  to  apply  the  estab- 
lished rules  and  principles  of  tlie  common  law  to  the  adjudication  of 
those  cases  of  which  it  was  given  jurisdiction.  Pyeatt  v,  Powell,  51 
Fed.  Rep.  551.  But  if  it  be  held  that  the  establishment  of  a  United 
States  court  in  the  Indian  Territory  did  not  put  the  common  law  in 
force  in  said  Territory,  except  in  so  far  as  was  necessary  to  execute 
the  powers  of  said  court,  and  for  the  adjudication  of  such  cases  as 
actually  went  into  that  forum,  then  there  was  no  law  in  Oklahoma,  at 
the  date  of  its  settlement,  regulating  the  making  of  contracts.  If 
this  should  be  conceded,  then  it  necessarily  follows,  on  principle,  that 
when  people  from  all  parts  of  the  United  States,  on  the  22d  day  of 
April,  1889,  settled  the  country  known  as  Oklahoma,  built  cities, 
towns,  and  villages,  and  began  to  carry  on  trade  and  commerce  in  all 
its  various  branches,  they  brought  into  Oklahoma,  with  them,  the 
established  principles  and  rules  of  the  common  law,  as  recognized  and 
promulgated  by  the  American  courts,  and  as  it  existed  when  im- 
ported into  this  country  by  our  early  settlers,  and  unmodified  by 
American  or  English  statutes.  So  that,  in  any  event,  the  common 
law  prevailed  in  Oklahoma  at  the  time  the  contract  between  the 
appellant  and  appellee  was  entered  into;  and  as,  at  common  law,  con- 


116  STATES.  [part  I. 

tracts  for  the  sale  and  conveyance  of  real  estate  were  not  required  to 
he  in  writing,  the  contract  mentioned  in  the  complaint  may  be  en- 
forced, unless  void  for  other  reasons.^ 


Section  6.  —  Territorial  Waters  of  a  State. 


(a)  Rivers.^ 
HANDLY'S   LESSEE  v.    A:N^THOTnY. 

Supreme  Court  of  the  United  States,  1820. 
(  5  Wheaton,  374.) 

Mr.  Chief  Justice  Marshall  delivered  the  opinion  of  the  court. 
This  was  an  ejectment  brought  in  the  Circuit  Court  of  the  United 
States  for  the  District  of  Kentucky,  to  recover  land  which  the  plain- 
tiff claims  under  a  grant  from  the  State  of  Kentucky,  and  which  the 
defendants  hold  under  a  grant  from  the  United  States  as  being  part 
of  Indiana.  The  title  depends  upon  the  question  whether  the  lands 
lie  in  the  State  of  Kentucky,   or  in  the  State  of  Indiana. 

At  this  place,  as  appears  from  the  plat  and  surveyor's  certificate, 
the  Ohio  turns  its  course,  and  runs  southward  for  a  considerable  dis- 
tance, and  then  takes  a  northern  direction,  until  it  approaches  within 
less  than  three  miles,  as  appears  from  the  plat,  of  the  place  where 
its  southern  course  commences.  A  small  distance  above  the  narrow- 
est part  of  the  neck  of  land  which  is  thus  formed,  a  channel,  or  what 
is  commonly  termed  in  that  country  a  bayou,  makes  out  of  the 
Ohio,  and  enters  the  same  river  a  small  distance  below  the  place 
Avhere  it  resumes  its  westward  course.  This  channel,  or  bayou,  is 
about  nine  miles  by  its  meanders,  three  miles  and  a  half  in  a 
straight  line,  and  from  four  to  five  poles  wide.  The  circuit  made  by 
the  river  appears  to  be  from  fifteen  to  twenty  miles.  About  midway 
of  the  channel  two  branches  empty  into  it  from  the  northwest, 
between  six  and  seven  hundred  yards  from  each  other;  the  one  of 

1  Tlie  contract  was  lield  not  to  be  void  on  the  ground  alleged ;  the  court  followed 
on  tills  point  Lamb  v.  Duveiiport,  18  Wall.  307.  —  Ed. 

2  As  previously  said,  a?;/*",  p.  84,  note,  the  cases  cited  in  U.  S.  v.  Texas,  ante,  16, 
are  the  leading  authorities  in  the  United  States  on  this  subject.  They  are,  how- 
ever, too  long  to  print,  and  the  decision  of  Iland/i/  v.  Anlhom/  is  supplemented  by  two 
State  cases,  which,  altiiougii  less  known,  correctly  state  tiic  law. — Eu. 


CHAP.  I.]  HANDLY's    lessee  V.  ANTHONY.  117 

which  runs  along  the  channel  at  low  water,  eastward,  and  the  other 
westward,  until  they  both  enter  the  main  river.  ]^>etween  them  is 
ground  over  which  the  waters  of  the  Ohio  do  not  pass  until  the  river 
has  risen  about  ten  feet  above  its  lowest  state.  It  rises  from  forty 
to  fifty  feet,  and  all  the  testimony  proves  that  this  channel  is  made 
by  the  waters  of  the  river,  not  of  the  creeks  which  empty  into  it. 
The  people  who  inhabit  this  peninsula,  or  island,  have  always  i)aid. 
taxes  to  Indiana,  voted  in  Indiana,  and  been  considered  as  within 
its  jurisdiction,  both  while  it  was  a  Territory,  and  since  it  has  be- 
come a  State.  The  jurisdiction  of  Kentuckj-  has  never  been  extended 
over  them. 

The  question  whether  the  lands  in  controversy  lie  within  the  State 
of  Kentucky  or  of  Indiana,  depends  chiefly  on  the  land  law  of  Virginia, 
and  on  the  cession  made  by  that  State  to  the  United  States. 

Both  Kentucky  and  Indiana  were  supposed  to  be  comprehended 
within  the  charter  of  Virginia  at  the  commencement  of  the  war  of 
our  revolution.  At  an  early  period  of  that  war,  the  question  whether 
the  immense  tracts  of  unsettled  country  which  lay  within  the  charters 
of  particular  States,  ought  to  be  considered  as  the  property  of  those 
States,  or  as  an  acquisition  made  by  the  arms  of  all,  for  the  beneiit 
of  all,  convulsed  our  confederacy,  and  threatened  its  existence.  It  was 
probabl}''  with  a  view  to  this  question  that  Virginia,  in  1779,  when  she 
opened  her  land  office,  prohibited  the  location  or  entry  of  any  land 
"on  the  northwest  side  of  the  river  Ohio." 

In  September,  1780,  Congress  passed  a  resolution,  recommending 
"to  the  several  States  having  claims  to  waste  and  unappropriated 
lands  in  the  western  country,  a  liberal  cession  to  the  United  States, 
of  a  portion  of  their  respective  claims,  for  the  common  beneiit  of  the 
Union."  And  in  January,  1781,  the  Commonwealth  of  Virginia 
yielded  to  the  United  States  "all  right,  title,  and  claim,  which  the 
said  Commonwealth  had  to  the  territory  northwest  of  the  river  Ohio, 
subject  to  the  conditions  annexed  to  the  said  act  of  cession."  One  of 
these  conditions  is,  "that  the  ceded  territory  shall  be  laid  out  and 
formed  into  States."  Congress  accepted  this  cession,  but  proposed 
some  small  variation  in  the  conditions,  which  was  acceded  to;  and  in 
1783  Virginia  passed  her  act  of  confirmation,  giving  authority  to 
her  members  in  Congress  to  execute  a  deed  of  conveyance. 

It  was  intended  then  by  Virginia,  when  she  made  this  cession  to 
the  United  States,  and  most  probably  when  she  opened  her  land 
office,  that  the  great  river  Ohio  should  constitute  a  boundary  between 
the  States  which  might  be  formed  on  its  opposite  banks.  This  inten- 
tion ought  never  to  be  disregarded  in  construing  this  cession. 

The  two  exceptions  present  substantially  the  same  questions  to  the 


118  STATES.  [part  I. 

court,  and  may  therefore  be  considered  together.  They  are,  whether 
land  is  properly  denominated  an  island  of  the  Ohio,  unless  it  be  sur- 
rounded with  the  water  of  the  river,  when  low?  and  whether  Kentucky 
was  bounded  on  the  west  and  northwest  by  the  low  water  mark  of  the 
river,  or  at  its  middle  state?  or,  in  other  words,  whether  the  State  of 
Indiana  extends  to  low-water  mark,  or  stops  at  the  line  reached  by  the 
river  when  at  its  medium  height? 

In  pursuing  this  inquiry,  we  must  recollect  that  it  is  not  the  bank 
of  the  river,  but  the  river  itself,  at  which  the  cession  of  Virginia  com- 
mences. She  conveys  to  Congress  all  her  right  to  the  territory  "situ- 
ate, lying,  and  being  to  the  northwest  of  the  river  Ohio."  And  this 
territory,  according  to  express  stipulation,  is  to  be  laid  off  into  inde- 
pendent States.  These  States,  then,  are  to  have  the  river  itself, 
wherever  that  may  be,  for  their  boundary.  This  is  a  natural  boun- 
dary, and  in  establishing  it,  Virginia  must  have  had  in  view  the 
convenience  of  the  future  population  of  the  country. 

When  a  great  river  is  the  boundary  between  two  nations  or  states, 
if  the  original  property  is  in  neither,  and  there  be  no  convention 
respecting  it,  each  holds  to  the  middle  of  the  stream.  But  when, 
as  in  this  case,  one  State  is  the  original  proprietor,  and  grants  the 
territory  on  one  side  only,  it  retains  the  river  within  its  own  domain, 
and  the  newly  created  State  extends  to  the  river  only.  The  river, 
however,  is  its  boundary. 

"In  case  of  doubt,"  says  Vattel,  "every  country  lying  upon  a  river, 
is  presumed  to  have  no  other  limits  but  the  river  itself;  because  noth- 
ing is  more  natural  than  to  take  a  river  for  a  boundary,  when  a  state 
is  established  on  its  border;  and  wherever  there  is  a  doubt,  that  is 
always  to  be  presumed  which  is  most  natural  and  most  probable. 

"If,"  says  the  same  author,  "the  country  which  borders  on  a  river, 
has  no  other  limits  than  the  river  itself,  it  is  in  the  number  of  terri- 
tories that  have  natural  or  indetermined  limits,  and  it  enjoys  the 
right  of  alluvion." 

Any  gradual  accretion  of  land,  then,  on  the  Indiana  side  of  the 
Ohio,  would  belong  to  Indiana,  and  it  is  not  very  easy  to  distinguish 
between  land  thus  formed,  and  land  formed  by  the  receding  of  the 
water. 

If,  instead  of  an  annual  and  somewhat  irregular  rising  and  falling 
of  the  river,  it  was  a  daily  and  almost  regular  ebbing  and  flowing  of 
the  tide,  it  would  not  be  doubted  that  a  country  bounded  by  the  river 
would  extend  to  low-water  mark.  This  rule  has  been  established  by 
the  common  consent  of  mankind.  It  is  founded  on  common  conven- 
ience. Even  when  a  State  retains  its  dominion  over  a  river  which 
constitutes  the  boundary  between  itself  and  another  State,  it  would 


CHAP.  I.]  HANDLY'S   lessee   V.    ANTHONY.  119 

be  extremely  inconvenient  to  extend  its  dominion  over  the  land  on 
the  other  side,  which  was  left  bare  by  the  receding  of  the  water. 
And  this  inconvenience  is  not  less  where  the  rising  and  falling  is 
annual,  than  where  it  is  diurnal.  Wherever  the  river  is  a  boundary 
between  States,  it  is  the  main,  the  permanent  river,  which  constitutes 
that  boundary;  and  the  mind  will  find  itself  embarrassed  with  insur- 
mountable difficulty  in  attempting  to  draw  any  other  line  than  the 
low-water  mark. 

When  the  State  of  Virginia  made  the  Ohio  the  boundary  of  States, 
she  must  have  intended  the  great  river  Ohio,  not  a  narrow  bayou  into 
which  its  waters  occasionally  run.  All  the  inconvenience  which 
would  result  from  attaching  a  narrow  strip  of  country  lying  on  the 
northwest  side  of  that  noble  river  to  the  States  on  its  southeastern 
side,  would  result  from  attaching  to  Kentucky,  the  State  on  its 
southeastern  border,  a  body  of  land  lying  northwest  of  the  real  river, 
and  divided  from  the  mainland  only  by  a  narrow  channel,  through 
the  whole  of  which  the  waters  of  the  river  do  not  pass,  until  they  rise 
ten  feet  above  the  low-water  mark. 

The  opinions  given  by  the  court  must  be  considered  in  reference 
to  the  case  in  which  they  were  given.  The  sole  question  in  the  cause 
respected  the  boundary  of  Kentucky  and  Indiana;  and  the  title  de- 
pended entirely  upon  that  question.  The  definition  of  an  island 
which  the  court  was  requested  to  give,  was  either  an  abstract 
proposition,  which  it  was  unnecessary  to  answer,  or  one  which  was 
to  be  answered  according  to  its  bearing  on  the  facts  in  the  cause. 
The  definition  of  an  island  was  only  material  so  far  as  that  defini- 
tion might  aid  in  fixing  the  boundary  of  Kentucky.  In  the  opinion 
given  by  the  court  on  the  motion  made  by  the  counsel  for  the  defen- 
dants, they  say  that  "  no  land  can  be  called  an  island  of  the  Ohio, 
unless  it  be  surrounded  by  the  waters  of  that  river  at  low-water 
mark."  We  are  not  satisfied  that  this  definition  is  incorrect,  as 
respected  the  subject  before  the  court;  but  it  is  rendered  unimpor- 
tant, by  the  subsequent  member  of  the  sentence,  in  which  they  say, 
"  that  to  low-water  mark  only,  on  the  western  and  northwestern  side 
of  the  Ohio,  does  the  State  of  Kentucky  extend." 

So,  in  the  motion  made  by  the  counsel  for  the  plaintiff,  the  court 
was  requested  to  say,  that  if  the  waters  of  the  Ohio  flowed  in  the 
channel,  in  its  middle  and  usual  state,  it  was  not  only  an  island,  but 
"within  the  State  of  Kentucky." 

If  the  land  was  not  within  the  State  of  Kentucky,  the  court  could 
not  give  the  direction  wliich  was  requested.  The  court  gave  an 
instruction  substantially  the  same  with  that  which  had  been  given  on 
the  motion  of  the  defendant's  counsel. 


120  STATES.  [part  I. 

If  it  be  true,  that  the  river  Ohio,  not  its  ordinary  bank,  is  the 
boundary  of  Indiana,  the  limits  of  that  State  can  be  determined  only 
by  the  river  itself.  The  same  tract  of  land  cannot  be  sometimes  in 
Kentucky,  and  sometimes  in  Indiana,  according  to  the  rise  and  fall 
of  the  river.     It  must  be  always  in  the  one  State,   or  the  other. 

There  would  be  little  difficulty  in  deciding,  that  in  any  case  other 
than  land  which  was  sometimes  an  island,  the  State  of  Indiana  would 
extend  to  low-water  mark.  Is  there  any  safe  and  secure  principle,  on 
which  we  can  apply  a  different  rule  to  land  which  is  sometimes, 
though  not  always,   surrounded  by  water? 

So  far  as  respects  the  great  purposes  for  which  the  river  was  taken 
as  the  boundary,  the  two  cases  seem  to  be  within  the  same  reason, 
and  to  require  the  same  rule.  It  would  be  as  inconvenient  to  the 
people  inhabiting  this  neck  of  laud,  separated  from  Indiana  only  by 
a  bayou  or  ravine,  sometimes  dry  for  six  or  seven  hundred  yards 
of  its  extent,  but  separated  from  Kentucky  by  the  great  river  Ohio, 
to  form  a  part  of  the  last-mentioned  State,  as  it  would  for  the  inliabl- 
tants  of  a  strip  of  Imd  along  the  whole  extent  of  the  Ohio,  to  form  a 
part  of  the  State  on  the  opposite  shore.  Neither  the  one  nor  the 
other  can  be  considered  as  intended  by  the  deed  of  cession. 

If  a  river,  subject  to  tides,  constituted  the  boundary  of  a  State,  and 
at  flood  the  waters  of  the  river  flowed  through  a  narrow  channel, 
round  an  extensive  body  of  land,  but  receded  from  that  channel  at 
ebb,  so  as  to  leave  the  land  it  surrounded  at  high  water,  connected 
with  the  main  body  of  the  country;  this  portion  of  territory  would 
scarcely  be  considered  as  belonging  to  the  State  on  the  opposite  side 
of  the  river,  although  that  State  should  have  the  property  of  the 
river.  The  principle  that  a  country  bounded  by  a  river  extends  to 
low- water  mark,  a  principle  so  natural,  and  of  such  obvious  con- 
venience as  to  have  been  generally  adopted,  would,  we  think,  apply 
to  that  case.  We  perceive  no  sufficient  reason  why  it  should  not 
apply  to  this. 

The  case  is  certainly  not  without  its  difficulties;  but  in  great  ques- 
tions which  concern  the  boundaries  of  States,  where  great  natural 
boundaries  are  established  in  general  terms,  with  a  view  to  public 
convenience,  and  the  avoidance  of  controversy,  we  think  the  great 
object,  where  it  can  be  distinctly  perceived,  ought  not  to  be  defeated 
by  those  technical  perplexities  which  may  sometimes  influence  con- 
tracts  between  individuals.  The  State  of  Virginia  intended  to  make 
the  great  river  Ohio,  throughout  its  extent,  the  boundary  between 
the  territory  ceded  to  the  United  States  and  herself.  When  that 
part  of  Virginia,  which  is  now  Kentucky,  became  a  separate  State, 
the  river  was  the  boundary  between  the  new  States  erected  by  Con- 


CHAP.  I-]  BUTTENUTH   V.    ST.   LOUIS   BRIDGE   CO.  121 

gress  in  the  ceded  territory,  and  Kentucky.  Tliose  principles  and 
considerations  whicli  produced  the  boundary,  ought  to  preserve  it. 
They  seem  to  us  to  require,  that  Kentucky  shoukl  not  pass  the  main 
river,  and  possess  herself  of  lands  lying  on  the  opposite  side,  although 
they  should,  for  a  considerable  portion  of  the  year,  be  surrounded  by 
the  waters  of  the  river  flowing  into  a  narrow  channel. 

It  is  a  fact  of  no  inconsiderable  importance  in  this  case,  that  the 
inhabitants  of  this  land  have  uniformly  considered  themselves,  and 
have  been  uniformly  considered,  both  by  Kentucky  and  Indiana,  as 
belonging  to  the  last-mentioned  State.  No  diversity  of  opinion 
appears  to  have  existed  on  this  point.  The  water  on  the  north- 
western side  of  the  land  in  controversy,  seems  not  to  have  been 
spoken  of  as  a  part  of  the  river,  but  as  a  bayou.  The  people  of  the 
vicinage,  who  viewed  the  river  in  all  its  changes,  seem  not  to  have 
considered  this  land  as  being  an  island  of  the  Ohio,  and  as  a  part  of 
Kentucky,  but  as  lying  on  the  northwestern  side  of  the  Ohio,  and 
being  a  part  of  Indiana. 

The  compact  with  Virginia,  under  which  Kentucky  became  a  State, 
stipulates,  that  the  navigation  of,  and  jurisdiction  over,  the  river, 
shall  be  concurrent  between  the  new  States,  and  the  States  which 
may  possess  the  opposite  shores  of  the  said  river.  This  term  seems 
to  be  a  repetition  of  the  idea  under  which  the  cession  was  made. 
The  shores  of  a  river  border  on  the  water's  edge. 

Judgment  affirmed,  with  costs. 


WILLIAM  BUTTEXUTH   et  al.  v.   THE   ST.   LOUIS 
BRIDGE   COMPANY. 

Supreme  Court  of  Illinois,  1888. 

(123  lU'inois,  535.) 

Mr.  Justice  Scott  delivered  the  opinion  of  the  court.  *  *  * 
The  remaining  ground  of  relief  insisted  upon  is,  that  part  of  the 
bridge  structure  which  lies  west  of  its  easternmost  pier  is  outside  of 
the  State  of  Illinois,  and  was  illegally  assessed  and  included  in  the 
assessment  with  that  part  which  is  confessedly  within  the  limits  of 
the  State.  On  this  branch  of  the  case  some  evidence  was  offered,  and 
some  discussion  has  been  had  as  to  the  boundary  line  between  the 
States  of  Missouri  and  Illinois  at  the  point  where  the  bridge  struc- 
ture spans  the  Mississippi  River.  That  question  is  certainly  one  of 
great  gravity,  and  one  this  court  will  hardly  undertake  to  determine 
definitely  on  the  meagre  evidence  to  be  found  in  this  record,  and  in 


122  STATES.  [part  I. 

a  case  where  neither  State  is  represented,  and  where  there  are  no 
defendants  other  than  private  citizens,  neither  of  whom  had  the 
slightest  personal  interest  in  the  matter.  The  ntmost  this  court 
will  assume  to  decide  is,  what  part  of  complainant's  bridge  is  to  be 
regarded  as  within  the  State  of  Illinois  for  the  purposes  of  taxation, 
or,  what  is  the  same  thing,  does  the  valuation  of  complainant's  prop- 
erty, as  made  by  the  assessor  for  1885,  include  any  portion  of  the 
bridge  not  subject  to  taxation  in  this  State. 

It  is  certain  no  part  of  that  portion  of  the  bridge  structure  assessed 
by  the  local  assessor  for  taxation  in  this  State  is  in  the  State  of  Mis- 
souri, nor  does  it  appear  that  it  was  ever  subject  to  taxation  in  that 
State.  In  the  act  of  Congress,  March  6,  1820  (U.  S.  Stat,  at  Large, 
p.  545),  to  enable  the  territory  of  Missouri  to  form  a  constitution,  in 
fixing  the  boundaries  it  is  declared,  "  thence  due  east  to  the  middle  of 
the  main  channel  of  the  Mississippi  River,  thence  down  and  follow- 
ing the  course  of  the  Mississippi  Kiver,  in  the  middle  of  the  main 
channel  thereof."  The  State  of  Missouri,  by  its  constitution  of  1820, 
ratified  the  boundaries  as  fixed  by  the  enabling  act  of  Congress,  and 
there  can  be  no  pretence  the  eastern  boundary  of  the  State  has  since 
been  changed.  The  constitution  of  1875,  of  that  State,  simply  rati. 
fied  and  confirmed  the  boundaries  of  the  State  as  established  by  law. 
Notwithstanding  the  fact  the  main  channel  of  the  river  might  be 
changed  by  imperceptible  natural  wear  on  one  side,  or  by  gradual 
formation  of  alluvions,  still  "the  middle  of  the  main  channel,"  when 
ascertained,  would  be  the  boundary  of  the  State.  It  might  be  a 
slightly  shifting  line,  hardly  perceptible;  still  it  would  be  a  well- 
known  and  easily  ascertainable  boundary  line.  The  rule  of  law  is, 
when  a  stream  dividing  co-terminous  States,  being  a  boundary  line, 
alters  its  channel  by  a  gradual  or  imperceptible  process  of  wear  or  of 
alluvions,  the  boundary  shifts  with  the  channel.  No  matter  what 
coticlusion  might  be  reached  as  to  the  western  bovmdary  of  Illinois, 
it  cannot  be  maintained  the  eastern  boundary  of  the  State  of  Missouri 
is  farther  east  than  the  "  middle  of  the  main  channel  "  of  the  Missis- 
sippi at  the  point  where  the  bridge  structure  spans  that  river.  It  is 
not  alleged  in  the  bill,  nor  claimed  in  argument,  any  portion  of  the 
bridge  assessed  by  the  local  assessor  in  this  State  lies  west  of  the 
"middle  of  the  main  channel "  of  the  river.  It  would  seem  to  follow, 
therefore,  if  that  portion  of  the  bridge  included  in  the  assessment  that 
lies  between  the  eastern  pier  of  the  bridge  and  the  "middle  of  the 
main  channel "  of  the  river,  is  not  within  the  limits  of  the  State  of 
Illinois,  it  is  not  included  within  the  defined  boundaries  of  either 
State.  That  conclusion  will  hardly  be  adopted,  unless  the  question 
will  admit  of  no  other  solution. 


CHAP.  I.]  BUTTENUTH   V.    ST.    LOUIS    BRIDGE   CO.  123 

The  act  of  Congress  of  April  18,  1818,  to  enable  the  people  of  the 
Territory  of  Illinois  to  form  a  State  constitution,  fixed  the  western 
boundary  at  the  "middle  of  the  Mississippi  River,"  and  declared  the 
State  should  have  concurrent  "  jurisdiction  on  the  Mississippi  lliver 
with  any  State  or  States  to  be  formed  west  thereof,  so  far  as  said 
river  shall  form  a  common  boundary  to  both."     By  the  constitution 
of  1818,  the  people  ratified  the  boundaries  fixed  for  the  State  by  the 
enabling  act  of  Congress,  and  in  the  constitutions  of  1848  and  of  1870 
the  same  boundaries  and  jurisdiction  are  declared,  except  in  the  two 
last  constitutions  it  is  provided  "this  State  shall  exercise  such  juris- 
diction upon  the  Ohio  lliver  as  she  is  now  entitled  to,  or  such  as  may 
be  agreed  upon  by  this  State  and  the  State  of  Kentucky,"     It  seems 
clear,  from  all  legislation  and  ordinances  on  this  subject,  it  was  in- 
tended the  Mississippi  lliver  should  constitute  "a  common  boundary" 
between  the  State  of  Illinois  and  any  State  or  States  that  might  be 
formed  to  the  west  and  next  to  that  river.     That  intention  is  more 
definitely  declared  than  it  was  in  regard  to  the  Ohio  Eiver,  for  in 
fixing  the  boundary  of  Illinois,  when  the  line  down  along  the  middle 
of  the  Mississippi    River  should  reach  the  confluence  of   that  river 
with  the   Ohio,  the  boundary  should   be  from   thence  up   the  latter 
river  "along  its  northwestern  shore,"  and  yet  it  has  been  held  the 
river  is  the  boundary  between   States  divided  by  the  Ohio  River, 
although  the  original  proprietor,  in  granting  the  territory,  retained 
the  river  within  its  own  domain.     The  law,  as  stated  by  law  writers, 
and  in  the  adjudged  cases,  seems  to  be,  that  where  a  river  is  declared 
to  be  the  boundary  between  States,  although  it  may  change  imper. 
ceptibly,  from  natxiral  causes,  the  river,  "as  it  runs,  continues  to  be 
the  boundary."     But  if  the  river  should  suddenly  change  its  course, 
or  desert  the  original  channel,  the  rule  of  law  is,  the  boundary  re- 
mains in  the  middle  of  the  deserted  river  bed.     Where  a  river  is  a 
boundary  between  States,  as  is  the  Mississippi  between  Illinois  and 
^Missouri,  it  is  the  main  —  the  permanent  —  river  which  constitutes 
the  boundary,  and  not  that  part  which  flows  in  seasons  of  high  water, 
and  is  dry  at  other  times.      (Handli/'s  Lessee  v.  Anthomj,  5  Wheat. 
174.)     In  no  other  way  would  a  river  be  a  permanent  fixed  boundary, 
at  all  times  readily  ascertainable.     There  are  many  cogent  reasons 
why  the  boundary  lines  between  States  should  be  permanent,  other- 
wise territory  in  one  State  at  one  time,  sooner  or  later  might  be  in 
another  State.     It  must  be  in  one  State  all  the  time,  or  else  the  State 
would  lose  jurisdiction  over  it. 

Treating,  then,  as  must  be  done,  the  Mississippi  River  as  a  common 
boundary  between  the  States  of  Illinois  and  Missouri,  what  meaning 
is  to  be  given  to  the  term,  "middle  of  the  Mississippi  River,"  used 


124  STATES.  [part  I. 

in  the  enabling  act  of  Congress  and  in  the  constitution,  defining  the 
boundaries  of  the  State  of  Illinois?  Whether,  Avhen  mere  private 
rights  are  involved,  the  phrases  the  "middle  of  the  river,"  and  the 
"middle  of  the  main  channel,"  or,  what  is  the  same  thing,  the 
"thread  of  the  stream,"  mean  the  same  thing,  and  may  be  inter- 
changeably used,  there  are  many  considerations  affecting  the  public 
welfare  why  it  should  be  held  the  "  middle  of  the  channel "  of  a  river 
between  independent  States  or  countries  should  be  regarded  as  the 
boundary  line  between  them,  in  the  absence  of  express  agreement  to 
the  contrary.  When  applied  to  rivers  as  boundaries  between  States, 
the  phrases,  "middle  of  the  river,"  "and  middle  of  the  main  chan- 
nel," are  equivalent  expressions,  and  both  mean  the  centre  line  of  the 
main  channel,  — or,  as  it  is  most  frequently  expressed,  the  "thread 
of  the  stream."  Should  the  expression,  "middle  of  the  river,"  be 
construed  to  mean  a  line  midway  of  the  water  surface,  that  would  give 
no  permanent  boundary  that  could  be  ascertained.  It  would  be  at 
one  point  at  one  time,  and  distant  away  at  another.  Had  tlie  boun- 
daries of  Illinois  been  fixed  at  the  time  of  the  high  water  in  1844,  and 
the  middle  of  the  river  opposite  St.  Louis  be  held  to  be  a  line  mid- 
way of  the  surface  of  the  water,  that  line  would  then  have  been  far 
east  of  the  present  city  of  East  St.  Louis,  and  on  the  waters  receding, 
it  would  have  shifted  back  towards  the  west,  nearer  the  city  of  St. 
Louis.  So  unsatisfactory  a  proposition  as  that  will  not  be  adopted. 
It  Avould  lead  to  insurmountable  difficulties.  Some  light  will  be  cast 
upon  the  subject  of  inquiry  by  first  ascertaining,  as  near  as  may  be, 
the  meaning  of  the  words,  "main  channel,"  "mid-channel,"  "middle 
of  the  current,"  as  those  terms  are  used  in  the  adjudged  cases  and  in 
the  text-books  that  shall  be  examined. 

The  definition  of  the  word  "channel,"  given  in  the  most  recent  edi- 
tion of  Webster's  Dictionary,  is,  "the  bed  of  a  stream  of  water; 
especially  the  deeper  part  of  a  river  or  bay  where  the  main  current 
flows."  The  case  of  Dunleith  and  Dubuque  Bridge  Co.  v.  County  of 
DubiKpie,  bo  Iowa,  558,  while  this  court  does  not  approve  the  deci- 
sion of  the  case,  contains  a  very  accurate  definition  of  the  word 
"channel,"  as  commonly  used  by  river  men.  It  is  "the  word  chan- 
nel, when  employed  in  treating  subjects  connected  with  the  navigation 
of  rivers,  indicates  the  line  of  the  deep  water  which  vessels  follow." 
Ixv  Rowev.  Sm,ith,  51  Conn.  266,  it  is  said,  "the  expression,  'middle 
of  the  channel  of  the  bay  or  harbor, '  does  not  refer  to  the  tliread  of 
deepest  water,  but  to  that  space  within  which  ships  can  and  usually 
do  pass."  It  is  apprehended  it  is  in  this  sense  the  expressions, 
"middle  of  the  river,"  "middle  of  the  main  channel,"  "mid-channel," 
"middle  thread  of  the  channel,"  are  used  in  enabling  acts  of  Congress 


CHAP.  I.]  BUTTENUTH   V.    ST.    LOUIS   BRIDGE   CO.  125 

aud  in  State  constitutions  establishing  State  boundaries.  It  is  the 
free  navigation  of  the  river,  —  when  such  river  constitutes  a  common 
boundary,  that  part  on  which  boats  can  and  do  pass,  sometimes  called 
"nature's  pathway,"  — that  States  demand  shall  be  secured  to  them. 
When  a  river,  navigable  in  fact,  is  taken  or  agreed  upon  as  the  boun- 
dary between  two  nations  or  States,  the  utility  of  the  main  channel, 
or,  what  is  the  same  thing,  the  navigable  part  of  the  river,  is  too 
great  to  admit  a  supposition  that  either  State  intended  to  surrender 
to  the  State  or  nation  occupying  the  opposite  shore,  the  whole  of 
the  principal  channel  or  highway  for  vessels,  and  thus  debar  its  own 
vessels  the  right  of  passing  to  and  fro  for  purposes  of  defence  or 
commerce.  That  would  be  to  surrender  all,  or  at  least  the  most  valu- 
able part,  of  such  river  boundary,  for  the  purposes  of  commerce  or 
other  purposes  deemed  of  great  value,  to  independent  States  or 
nations. 

Construing,  then,  the  phrases,  "middle  of  the  ^Mississippi  Eiver," 
and  the  "middle  of  the  main  channel  of  the  ^lississippi  River,"  to 
mean  the  same  thing,  both  acts  of  Congress  fixing  the  boundaries  of 
Illinois  and  Missouri  declare  the  middle  of  the  main  channel  of  the 
Mississippi  Eiver  to  be  the  boundary  line  between  the  States,  and 
that  is  the  thread  of  the  main  stream. 

In  Thomas  Y.  Hatch,  3  Sumner,  170,  Story,  J.,  said:  "I  consider 
the  law  to  be  clearly  settled  that  a  boundary  on  a  stream,  on  or  by 
a  stream,  or  to  a  stream,  includes  the  flats,  at  least  to  low-water 
mark,   and  in  many  cases  to  the  middle  thread  of  the  river." 

A  valuable  case  on  this  subject  is  Morgan  v.  Reading,  3  Sm.  & 
Marsh.  366.  The  opinion  is  by  Chief  Justice  Sharkey.  Although 
not  directly  involved,  the  discussion,  in  part,  had  relation  to  the 
boundary  line  of  the  State  of  Mississippi.  The  facts  as  stated  in  the 
opinion  are,  that  by  various  treaties  and  cessions  the  United  States 
had  succeeded  to  all  the  territory  east  of  a  line  drawn  along  the  mid- 
dle of  the  Mississippi,  above  the  31st  degree  of  latitude.  Louisiana 
was  then  bounded  on  the  east  by  the  same  line,  —  the  middle  of  the 
river  above  the  river  Iberville,  as  it  had  been  established  by  the 
treaty  of  1763.  In  1798,  while  the  middle  of  the  river  was  still 
the  boundary  line  between  the  province  of  Louisiana  and  the  United 
States,  Congress  established  the  Mississippi  territory,  bounding  it  on 
the  west  by  the  Mississippi.  It  was  in  reference  to  that  line  the 
court  said,  "  we  have  said  that  Congress  omitted  to  mention  the  mid- 
dle of  the  river,  but  bounded  the  territory  by  the  Mississippi."  The 
common  law,  by  construction,  extends  grants  bounded  "b}^"  or  "on" 
or  "along"  a  fresh  water  stream,  to  the  thread  of  the  stream.  The 
Mississippi  territory,  by  this  rule,  extended  to  the  middle  of  the  river. 


126  STATES.  [part  I. 

In  Handhfs  Lessee  v.  Anthony,  supra,  it  was  said  by  the  court: 
"  Where  a  great  river  is  the  boundary  between  two  nations  or  States, 
if  the  original  property  is  in  neither,  and  there  be  no  convention, 
respecting  it,   each  holds  to  the  middle  of  the  stream." 

Mr.  Field,  in  his  work  entitled  "Outlines  of  an  International  Code," 
(2d  ed.)  section  30,  in  speaking  of  boundary  by  stream  or  channel, 
says :  "  The  limits  of  national  territory  bounded  by  a  river  or  stream, 
or  by  a  strait  or  sound,  or  arm  of  the  sea,  the  other  shore  of  which  is 
the  territory  of  another  nation,  extend  outward  to  a  point  equidis- 
tant from  the  territory  of  the  nation  occupying  the  opposite  shore,  or, 
if  there  be  a  stream  or  a  navigable  channel,  to  the  thread  of  the 
stream,  —  that  is,  to  the  mid-channel,  —  or,  if  there  be  several  chan- 
nels, to  the  middle  of  the  principal  one," 

In  his  work  on  the  "Law  of  Nations,"  p.  31,  Mr.  Poison  says:  "If 
the  river  divides  two  States,  the  mid-channel  is  considered  as  the 
boundary  line,  unless  prior  occupation  has  given  to  the  one  or  the 
other  the  right  of  possession  to  the  whole." 

There  are  cases  in  this  and  other  courts,  although  the  discussion 
had  reference  directly  to  riparian  rights,  and  not  to  boundaries  be- 
tween States,  that  illustrate  this  same  doctrine.  In  Fletcher  v. 
Thunder  Bag  Boom  Co.,  51  Mich.  277,  it  was  held,  the  riparian  rights 
of  defendant  in  the  case  being  considered,  extended  to  the  thread  of 
the  stream  —  to  the  centre  of  the  main  channel  of  the  river.  It  was 
said  by  this  court  in  Middleton  v.  Pritchard,  3  Scam.  510,  "that  all 
grants  bounded  upon  a  river  not  navigable  by  the  common  law, 
entitled  the  grantee  to  all  islands  lying  between  the  mainland  and 
the  centre  thread  of  the  current."  In  Cobb  v.  Lavalle,  89  111.  331,  it 
was  said :  "  It  seems  to  be  the  settled  law  of  this  country,  that  the 
owner  of  land  bordering  upon  a  river  not  navigable  at  common  law, 
such  as  the  Mississippi  River,  will  be  entitled  to  claim  to  the  centre 
of  the  current  of  the  stream."  The  same  doctrine  was  re-stated  in 
Piper  \.  Connelly,  108  111.  646,  where  it  was  said:  "The  general  doc- 
trine that  grants  of  land  bounded  upon  rivers,  or  the  margins  above 
tide  water,  carry  the  exclusive  right  and  title  of  the  grantee  to  the 
centi*e  thread  of  the  current,  unless  the  terms  of  the  grant  clearly 
denote  the  intention  to  stop  at  the  margin  of  the  river,  has  been  too 
long  established  and  too  firmly  adhered  to  by  this  court  to  be  now 
questioned." 

No  reason  is  perceived  why  the  principles  here  stated  should  not 
control  the  decision  of  the  case  being  considered.  As  before  re- 
marked, it  is  manifest  it  was  the  intention  of  Congress  the  Missis- 
sippi River  should  constitute  a  "common  boundary"  between  the 
States  of  Illinois  and  Missouri,  and  had  the  words  the  "middle  of 


CHAP.  I.]  BUTTENUTH   V.    ST.    LOUIS   BRIDGE   CO.  127 

the  Mississippi  Kiver,"  and  the  "middle  of  the  main  channel,"  been 
omitted  iu  both  enabling  acts  of  Congress,  still  the  river  itself  would 
be  the  boundary,  and  each  State  would  hold  to  the  "  middle  of  the 
stream,"  —  that  is  to  say,  the  middle  thread  of  the  stream.  The  in- 
tention in  this  respect  is  made  most  manifest  by  the  fact  it  must  have 
been  and  was  known  to  Congress  when  it  passed  the  enabling  act  for 
Missouri,  and  lixed  the  boundary  at  the  "middle  of  the  main  channel 
of  the  Mississippi  River,"  that  the  Avestern  boundary  of  Illinois  had 
been  fixed  "at  the  middle  of  the  Mississippi  River,"  and  certainly  it 
w\as  not  intended  to  fix  two  distinct  or  different  boundary  lines.  That 
would  have  left  a  space  not  in  either  State,  and  no  such  absurd  inten- 
tion should  be  imputed  to  Congress.  It  was  most  appropriately  said 
by  the  court  in  Morr/an  v.  Reading,  supra,  in  respect  to  the  boundary 
line  as  fixed  by  the  act  of  Congress  organizing  the  territory  of  Missis- 
sippi, which  established  the  "Mississippi  River"  as  the  western  boun- 
dary: "All  west  of  that  line,"  —  that  is,  the  middle  of  the  river,  — ■ 
"  was  owned  by  a  foreign  power,  and  we  cannot  suppose  Congress, 
under  the  circumstances,  designed  to  limit  the  jurisdiction  of  the 
territory  by  the  bank  of  the  river." 

The  suggestion,  Congress,  by  its  enabling  acts,  may  have  estab- 
lished one  line  in  the  Mississippi  River  for  the  eastern  boundary  for 
Missouri,  and  another  line,  farther  east,  for  the  western  boundary  of 
Illinois,  has  nothing,  in  law  or  in  fact,  upon  which  to  rest.  The 
whole  legislation  on  this  subject  shows,  as  before  remarked,  it  w^as 
the  intention  of  Congress  to  make  the  river  a  "common  boundary" 
between  these  States,  and  the  expressions  used  in  both  enabling  acts, 
although  the  words  used  may  not  be  the  same,  make  the  middle  of 
the  main  channel  of  the  permanent  river  the  boundary  line.  In 
such  cases  the  principle  is  as  stated  by  Mr.  Woolsey,  in  his  work  on 
International  Law,  section  58:  "Where  a  navigable  river  forms  the 
boundary  between  States,  both  are  presumed  to  have  free  use  of  it, 
and  the  dividing  line  will  run  in  the  middle  of  the  channel,  unless 
the  contrary  is  shown  by  long  occupancy  or  agreement  of  parties." 
Commercial  considerations  make  it  imperative,  where  States  or 
nations  are  divided  by  a  navigable  river,  each  should  hold  to  the 
centre  thread  of  the  main  channel  or  current  along  which  vessels  in 
the  carrying  trade  pass.  That  is  the  "channel  of  commerce,"  —  not 
the  shallow  water  of  the  stream,  which,  at  some  seasons  of  the  year, 
may  be  impossible  of  navigation,  —  upon  which  each  nation  or  State 
demands  the  right  to  move  its  products  without  any  interference  from 
the  State  or  nation  occupying  the  opposite  shore.  So  important  has 
this  right  ever  been  deemed,  it  is  thought  to  be  embraced  in  all  trea- 
ties, cessions,  ordinances,  statutes  and  constitutions  made,  enacted  or 


128  STATES.  [part  I. 

adopted  in  regard  to  the  Mississippi  River  since  the  Federal  Govern- 
ment v.^as  organized.  It  was  the  great  desire  to  secure  this  important 
privilege  that  gave  rise  to  all  the  efforts  on  the  part  of  the  general 
Government  to  obtain  the  control  of  the  Mississippi  River  from  its 
source  to  that  point  where  it  empties  into  the  gulf  and  connects  with 
the  sea. 

It  lias  been  often  ruled,  the  intention  in  such  great  matters  as  State 
boundaries,  when  clearly  manifested  by  cessions,  grants  or  legislative 
acts,  should  control.  It  is  a  fact  so  well  known  it  is  not  called  in 
question,  that  so  far  back  as  can  be  known,  either  from  history  or 
tradition,  the  main  channel  of  the  Mississippi  River  at  the  point 
where  complainant's  bridge  is  constructed,  was  always  west  of  Bloody 
Island,  —  that  is,  between  that  island  and  the  Missouri  shore.  Both 
States  have  always  recognized  this  fact,  and  for  that  reason  "  Bloody 
Island,"  although  the  river  east  of  it  was,  in  fact,  at  one  time,  navi- 
gable for  shallow-draft  vessels,  —  certainly  in  seasons  of  high  water, 
—  was  always  regarded  as  being  within  tlie  limits  of  the  State  of 
Illinois.  At  one  time  grave  apprehensions  were  entertained  that  the 
main  cliannel  of  the  river  might  change  to  the  east  side  of  "Bloody 
Island,"  and  thus  leave  the  Missouri  side;  but  by  the  consent  of  Illi- 
nois, expressed  by  the  General  Assembly,  dykes  and  other  structures 
were  erected  at  the  upper  end  of  the  island  to  keep  the  main  channel 
on  the  Missouri  side,  where  it  had  previously  been.  Those  structures 
proved  efficient,  and  the  main  channel  of  the  river  now  flows  where  it 
did  since  before  the  boundaries  of  either  State  divided  by  it  were  es- 
tablished by  Congress  or  declared  by  State  constitutions.  It  is  not 
claimed,  either  by  the  bill  or  in  the  evidence,  that  any  part  of  com- 
plainant's bridge  that  was  assessed  by  the  local  assessor  lies  west  of 
the  middle  of  what  has  always  been  the  main  channel  of  the  river 
since  the  States  were  organized  under  the  acts  of  Congress,  and  this 
court  has  no  hesitation  in  coming  to  the  conclusion  that  all  of  that 
part  of  the  bridge,  with  its  approaches,  that  lies  east  of  the  middle 
line  of  the  main  channel  of  the  river,  is  within  the  jurisdiction 
of  the  State  of  Illinois,  for  the  purposes  of  State  and  local  taxa- 
tion. Only  that  part  of  the  bridge  east  of  the  middle  of  the  main 
channel  of  the  river,  as  appears  from  the  plat  used  in  making 
the  assessment,  was  assessed  in  this  case,  and  that  was  warranted 
by  law. 

The  case  of  ATlsaouri  v.  KcMnrki/,  11  Wall.  395,  cited  by  counsel 
for  comjjlainant  as  being  conclusive  of  the  case  in  hand,  has  been 
examined,  and  it  is  not  perceived  it  contains  anything  in  conflict  with 
the  general  views  here  expressed.  Indeed,  some  of  the  reasoning 
in  that  case  has  been  adopted  in  this  opinion. 


CHAP.  I.]  COOLEY  V.    GOLDEN.  129 

The  judgment  of  the  circuit  court  will  be  reversed,  and  the  cause 
will  be  remanded,  with  directions  to  that  court  to  dismiss  the  bill. 

Judgment  reversed.^ 


MILLAED  F.  COOLEY  v.  JAMES  F.  GOLDEN. 
Kansas  City  Court  of  Appeals,   1893. 

(52  Missoitri  Appeals,  52.) 

Smith,  P.  J.  —  This  is  an  action  of  forcible  entry  and  detainer  which 
was  brought  before  a  justice  of  the  peace  of  Atcliison  County. 

By  the  act  of  Congress,  approved  June  7,  18o6,  United  States  Stat- 
utes at  Large,  34,  entitled  "An  Act  to  extend  the  western  boundary  of 
the  State  of  Missouri  to  the  Missouri  River,"  it  was  provided  that, 
when  the  Indian  title  to  all  the  lands  lying  between  the  State  of  ]\Iis- 
souri  and  the  Missouri  River  should  be  extinguished,  the  jurisdiction 
over  said  lands  should  be  thereby  ceded  to  the  State  of  Missouri.  It 
is  to  be  observed  that  the  act  ceded  the  land  between  the  old  State 
line  and  the  river,  and  the  extension  of  the  boundary  was  to  the  river, 
not  to  the  bank,  thus  making  the  natural  water-course  the  boundary ; 
and  the  general  rules,  construing  such  words  of  cession  as  shown  by 
the  adjudged  cases,  carry  that  boundary  to  the  centre  of  the  channel. 
Benso7i  v.  Morrow,  61  Mo.  345;  Jones  v.  Soiilard,  24:  How.  41;  Howard 
V.  Ingersoll,  13  How.  381  ;  liailroad  v.  Decereux,  41  Fed.  Rep.  14;  Mis- 
soKTi  V.  Iowa,  7  How.  660.  And  this  seems  to  have  been  the  intention 
of  Congress ;  for  it  will  be  seen  by  reference  to  the  act  providing  for 
the  admission  of  the  Territory  of  Nebraska  into  the  Union  that  one  of 
the  boundaries  of  the  State  so  admitted  should  be  from  the  junction 
of  the  Niobrara  River  down  the  middle  of  the  channel  of  the  latter 
river  following  the  meanderings  thereof,  &c.     13  United  States  Stat- 

1  Sir  William  Scott  states  the  law  tersely  in  The  Twee  Gehroeders,  1801,  3  C.  Kob. 
336,  339:  "The  law  of  rivers  flowing  entirely  through  the  provinces  of  one  state  is 
perfectly  clear.  In  the  sea,  out  of  the  reach  of  cannon-shot,  universal  use  is 
presunieil.  In  rivers  flowing  through  coterminous  states,  a  common  use  to  the 
different  states  is  presumed.  Yet  in  both  of  these  there  may,  by  legal  possibility, 
exist  a  peculiar  property,  excluding  the  universal  or  the  common  use.  Portions  cif 
the  sea  are  prescribed  for;  so  are  rivers  flowing  through  contiguous  states  ;  the  baidcs 
on  one  side  may  have  been  first  settled,  by  which  the  possession  and  property  may 
liave  been  acquired,  or  cessions  may  have  taken  place  upon  conquests,  or  other  events. 
But  the  general  presumption  certainly  bears  strongly  against  such  exclusive  rights, 
and  the  title  is  a  matter  to  be  established,  on  the  part  of  tliose  claiming  under  it,  in 
the  same  manner  as  all  legal  demands  are  to  be  substantiated,  by  clear  and  competent 
evidence." — Ed. 

0 


130  STATES.  [part  I. 

utes  at  Large,  47.  It  would  be  unreasonable  to  suppose  that  Congress 
intended  to  limit  the  extention  of  the  territorial  jurisdiction  of  the 
State  of  Missouri  to  the  bank  of  the  Missouri,  and  thus  leave  a  sort 
of  neutral  territory  between  the  Missouri  shore  and  the  middle  of  the 
channel  of  the  river  over  which  neither  the  States  of  Missouri  nor 
Nebraska  had  jurisdiction. 

The  Constitution  of  Missouri,  section  1,  article  1,  declared  that  the 
boundaries  of  the  State  as  heretofore  established  by  law  are  hereby 
ratified  and  confirmed;  so  that  it  is  not  to  be  doubted  that  Congress  by 
the  ceding  act  extended  the  northern  boundary  line  of  the  State  to  the 
middle  of  the  channel  of  the  Missouri  River,  and  from  thence  down 
the  river  to  the  middle  of  the  Kansas  River.  Act  of  Congress  of  March 
6,  1820,  for  the  admission  of  Missouri;  Revised  Statutes,  1889,  47. 
In  the  cession  act  of  June  7,  1836,  is  embraced  what  is  commonly 
known  as  the  "Platte  purchase,"  consisting  of  a  number  of  counties, 
among  which  is  Atchison,  situate  in  the  northwest  corner  of  the  State. 

At  the  time  of  the  cession  and  until  the  year  1867,  the  Missouri 
River  in  its  course  along  the  western  boundary  of  Atchison  County 
made  a  horseshoe-shaped  bend,  with  toe  to  the  east,  and  heel  pointing 
to  the  west.  During  the  spring  of  the  last-named  year  the  river,  dur- 
ing a  great  flood,  changed  its  course  by  effecting  a  channel  across  the 
heel  of  the  bend,  and  thus  abandoned  its  former  channel  around  the 
bend.  The  bend  became  a  lake  and  gradually  filled  up  with  sedimentary 
matter  until  it  became  solid  land,  fit  for  tillage  and  pasture.  The  land, 
the  possession  of  which  is  in  dispute  in  this  suit,  is  situate  in  the  old 
abandoned  bed  of  the  river  in  this  bend.  The  decisive  questions  in 
the  case  arise  on  the  instructions  given  and  refused  by  the  court. 

The  theory  of  the  plaintiff's  instructions  which  were  refused  by  the 
court  was  to  the  effect  that  if  the  lands  in  dispute  were  situate  in  the 
old  bed  of  the  river  which  had  become  dry  on  account  of  the  change 
of  its  course  by  cutting  off  a  bend  on  the  Nebraska  side  and  forming 
a  new  channel,  then  in  that  case  it  was  not  material  on  which  side  of 
the  main  channel  of  the  old  river  bed  the  lands  in  dispute  were  sit- 
uate. The  theory  of  the  defendant  which  was  adopted  by  the  court 
was  that  the  ordinary  boundary  of  Atchison  County  where  it  borders 
on  the  Missouri  River  extended  to  the  middle  of  the  main  channel  of 
the  river  as  the  main  channel  ran  or  was  located  in  the  year  1867  prior 
to  the  change  or  cut-off,  and  that,  unless  it  was  found  the  land  in  ques- 
tion was  situate  in  Atchison  County,  the  plaintiff  could  not  recover. 
The  defendant's  theory  further  was  that  the  boundary  line  of  the  State 
of  Missouri  at  the  location  in  question  was  the  middle  of  the  main 
channel  of  the  Missouri  River  as  the  main  channel  ran  before  the  cut- 
off in  1867.    These  theories  are  wholly  irreconcilable.    The  jury  found 


CHAP,  I.]  COOLEY  V.    GOLDEN.  131 

under  the  instructions  that  the  laud  in  dispute  was  not  in  Atchison 
County,  and,  as  there  was  substantial  testimony  tending  to  establish 
that  fact,  the  finding  is  conclusive  upon  us.  It  seems  that  the  river 
by  its  changed  course  cut  off  a  considerable  area  of  land  which  was 
formerly  on  the  Nebraska  side,  but  is  now  on  the  Missouri  side  of  it, 
so  that  th6  river  as  it  runs  along  the  western  border  of  this  area 
of  cut-off*  land  is  wholly  within  the  State  of  Nebraska. 

It  is  not  contended,  as  we  understand  it,  that  the  change  of  the  course 
of  the  river  in  18G7  effected  a  change  of  the  boundary  line  between 
the  two  States  as  it  was  fixed  in  the  ceding  act,  for,  if  it  were,  such 
contention  could  not  be  sustained,  because  it  is  plain  to  be  seen  that 
the  allowance  of  such  consequences  might  result  most  disastrously 
to  the  geography  of  the  State.  The  law  seems  to  be  well  settled  that 
when  a  river  is  declared  to  be  the  boundary  between  States,  although 
it  may  change  imperceptibly  from  natural  causes,  the  river  as  it  runs 
continues  to  be  the  boundary.  But,  if  the  river  should  suddenly 
change  its  course  or  desert  the  original  channel,  the  rule  of  law  is,  the 
boundary  remains  in  the  middle  of  the  deserted  river  bed.  Iowa  v. 
Nebraska,  143  U.  S.  359;  St.  Louis  v.  Rutz,  136  U.  S.  225;  Missouri  v. 
Kentucky,  11  Wall.  395;  Butter a-orth  v.  Bridge  Co.  123  111.  535;  Hol- 
hrook  V.  Moore,  4  Neb.  437;  Collins  v.  State,  3  Tex.  App.  324;  Gould 
on  Waters,  sect.  159. 

But  the  real  question  is  whether  the  States  of  Missouri  and  Nebraska 
have  concurrent  jurisdiction  over  the  old  bed  of  the  river  just  as  was 
the  case  when  the  river  ran  there  before  1867.  The  jurisdiction  of 
this  State  over  that  part  of  the  river  which  forms  a  common  boundary 
of  the  States  is  concurrent.  It  extends  not  only  to  the  middle  of  the 
channel  but  over  the  entire  channel.  Constitution,  art.  1,  sect,  1 ; 
Swearingen  v.  Steamboat,  13  Mo.  519 ;  Sanders  v.  Anchor  Line,  97  Mo. 
26.  But  here  there  is  no  river,  but  in  its  stead  is  dry  land  upon  which 
are  cultivated  fields  and  pastures.  The  physical  conditions  have  been 
changed.  Is  the  case  different  than  if  the  boundary  line  between  the 
two  States  had  been  located  originally  on  dry  land  instead  in  the  middle 
of  the  channel  of  the  river?  We  think  not.  The  concurrent  jurisdic- 
tion of  the  States  of  Missouri  and  Nebraska  under  their  enabling  acts 
does  not  in  any  case  extend  beyond  their  common  boundary,  except 
when  that  boundary  is  the  middle  of  the  channel  of  the  Missouri  River. 
Congress  has  imposed  this  limitation  upon  its  existence.  It  is  diffi- 
cult to  see  why  it  exists  here  any  more  than  if  the  river  had  always 
run  where  it  did  after  1867.  The  reason  for  the  grant  of  this  concur- 
rent jurisdiction,  which  is  so  well  and  forcibly  expressed  by  Judge 
Barclay  in  97  Mo.  siqyra,  lends  no  support  to  plaintiff's  claim  of 
concurrent  jurisdiction  in  this  case.    The  conditions  are  wanting  which 


132  STATES.  [parti. 

constitute  the  basis  of  this  jurisdiction.  The  boundary  line  between 
the  States  is  the  middle  of  the  former  bed  of  the  river,  and  to  this  line 
the  jurisdiction  of  each  extends,  but  the  concurrent  jurisdiction  along 
there  disappeared  when  the  river  did. 

It  is  not  believed  that  it  was  contemplated  by  Congress  or  the  States 
that  the  grant  of  concurrent  jurisdiction  of  the  two  States  on  the  river 
authorized  the  bringin;^  of  an  action  of  forcible  entry  and  detainer  or 
of  ejectment  in  this  State  for  the  recovery  of  lands  situate  anywhere 
within  the  territorial  limits  of  Nebraska,  "We  cannot  sustain  the 
theory  of  the  plaintiff's  instructions  which  were  to  that  effect.  We 
do  not  think  that  the  elimination  by  the  court  of  a  part  of  the  plaintiff's 
fourth  instruction  was  harmful  to  him,  in  view  of  the  issues  submitted 
to  the  jury  by  other  instructions  and  found  adversely  to  the  plaintiff. 

The  case  was  fairly  submitted  to  the  jury  by  the  instructions  of  the 
court.  The  judguient  seems  to  be  for  the  right  party  and  so  will  be 
affirmed.     All  concur.^ 


(h)     Straits  and  Lakes. 

UNITED   STATES   v.    EODGEES. 

Supreme  Court  of  the  United  States,  1893. 

(150  United  States,  249.) 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. ^ 
Several  questions  of  interest  arise  upon  the  construction  of  section 
5346  of  the  Revised  Statutes,  upon  which  the  indictment  in  this  case 
was  found.  The  principal  one  is  whether  the  term  "high  seas,"  as 
there  used,  is  applicable  to  the  open,  unenclosed  waters  of  the  Great 
Lakes,  between  which  the  Detroit  Iliver  is  a  connecting  stream.     The 

^  See,  also,  opinion  of  C.  Gushing,  1850,  8  Op.  Atty.  Gen.  175.  For  disputes  con- 
cerning the  riglit  freely  to  use  and  navigate  the  Mississippi,  see  Dana's  Wheaton, 
279-233;  Snow's  American  Diplomacy,  4,  67,  106;  for  the  St.  Lawrence,  Dana's 
Wlieaton,  283-287,  and  Danas  note,  287-288;  Snow's  Am.  Dip.  99;  for  Euro- 
pean rivers,  Dana's  Wlieaton,  275-279;  Schuyler's  Am.  Dip.;  Galvo's  Int.  Law, 
5th  ed.,  vol.  1,  433-446 ;  Hertslet's  Map  of  Europe  by  Treaty ;  Engelhardt,  in  the 
Revue  de  Droit  International,  vol.  11,  363-381;  of  South  American  rivers,  the 
Kivcr  La  Plata,  with  its  brandies,  the  Parana  and  the  Uruguay, was  opened  to  general 
commerce  during  the  period  from  1851  to  1859,  and  the  Amazon  during  that  from 
1858-1867,  Dana's  Wheaton,  287-288,  note  118;  Schuyler's  Am.  Dip.  319-344; 
Calvo,  I.,  451-455;  of  African  rivers  the  Congo  and  Niger  were  by  Conference  of 
Berlin  (1885)  declared  free  and  open  to  navigation  (Calvo,  I  455-463).  See  nrticles 
by  M.  Duchene:  Le  Droit  de  Navigation  dans  Le  Niger  (2  R.  G.  D.  I.  439-447);  M. 
Pillet:   La  Liberte  de  Navigation  du  Niger  (3  id.  190-223)  —Ed. 

^  Statement  of  the  case  omitted.  — Ed. 


CHAP.  I.]  UNITED   STATES   V.   RODGERS.  133 

term  was  formerly  used,  particularly  by  writers  on  public  law,  and 
generally  in  official  coinmuuications  between  different  governments,  to 
designate  the  open,  unenclosed  waters  of  the  ocean,  or  of  the  British 
seas,  outside  of  their  ports  and  havens.  At  one  time  it  was  claimed 
that  the  ocean,  or  portions  of  it,  were  subject  to  the  exclusive  use  of 
particular  nations.  The  Spaniards,  in  the  16th  century,  asserted  the 
right  to  exclude  all  others  from  the  Pacific  Ocean.  The  Portuguese 
claimed,  with  the  Spaniards,  under  the  grant  of  Pope  Alexander  VL, 
the  exclusive  use  of  the  Atlantic  Ocean  west  and  south  of  a  designated 
line.  And  the  English,  in  the  17th  century,  claimed  the  exclusive 
right  to  navigate  the  seas  surrounding  Great  Britain.  Woolsey  ou 
International  Law,  §  55. 

In  the  discussions  wlijch  took  place  in  support  of  and  against  these 
extravagant  pretensions  the  term  ''high  seas"  was  applied,  in  the 
sense  stated.  It  was  also  used  in  that  sense  by  English  courts  and  law 
writers.  There  was  no  discussion  with  them  as  to  the  waters  of  other 
seas.  The  public  discussions  were  generally  limited  to  the  considera- 
tion of  the  question  whether  the  high  seas,  that  is,  the  open,  unenclosed 
seas,  as  above  defined,  or  any  portion  thereof,  could  be  the  property  or 
under  the  exclusive  jurisdiction  of  any  nation,  or  whether  they  were 
open  and  free  to  the  navigation  of  all  nations.  The  inquiry  in  the 
English  courts  was  generally  limited  to  the  question  whether  the  juris- 
diction of  the  admiralty  extended  to  the  waters,  of  bays  and  harbors, 
such  extension  depending  upon  the  fact  whether  they  constituted  a 
part  of  the  high  seas. 

In  his  treatise  on  the  rights  of  the  sea,  Sir  Matthew  Hale  says  : 
"The  sea  is  either  that  which  lies  within  the  body  of  a  county,  or 
without.  That  arm  or  branch  of  the  sea  which  lies  within  the  fauces 
terrce,  where  a  man  may  reasonably  discern  between  shore  and  shore, 
is,  or  at  least  may  be,  within  the  body  of  a  county,  and,  therefore, 
within  the  jurisdiction  of  the  sheriff  or  coroner.  That  part  of  the  sea 
which  lies  not  witliin  the  body  of  a  county  is  called  the  main  sea  or 
ocean."  De  Jure  Maris,  c.  iv.  By  the  ''main  sea"  Hale  here  means 
the  same  thing  expressed  by  the  term  "high  sea"  — ''  mare  altum," 
or  "  le  haut  nier." 

In  Waring  v.  Clarke,  5  How.  410,  453,  this  court  said  that  it  had 
been  frequently  adjudicated  in  the  English  common  law  courts  since 
the  restraining  statutes  of  Richard  II.  and  Henry  IV.,  "  that  high  seas 
mean  that  portion  of  the  sea  which  washes  the  open  coast."  In 
United  States  v.  Griish,  5  Mason,  290,  it  was  held  by  ^U.  Justice  Story, 
in  the  United  States  Circuit  Court,  that  the  term  "high  seas,"  in  its 
usual  sense,  expresses  the  unenclosed  ocean  or  that  portion  of  the  sea 
which  is  without  the /aitces  terrce  on  the  seacoast,  in  contradistinction 


134  STATES.  [part  I, 

to  that  which  is  surrounded  or  enclosed  between  narrow  headlands  or 
promontories.  It  was  the  open,  unenclosed  waters  of  the  ocean,  or  the. 
open,  unenclosed  waters  of  the  sea,  which  constituted  the  "  high  seas  " 
in  his  judgment.  There  was  no  distinction  made  by  him  between  the 
ocean  and  the  sea,  and  there  was  no  occasion  for  any  such  distinction. 
The  question  in  issue  was  whether  the  alleged  offences  were  committed 
within  a  county  of  Massachusetts  on  the  seacoast,  or  without  it,  for  in 
the  latter  case  they  were  committed  upon  the  high  seas  and  within  the 
statute.  It  was  held  that  they  were  committed  in  the  County  of  Suf- 
folk, and  thus  were  not  covered  by  the  statute. 

If  there  were  no  seas  other  than  the  ocean,  the  term  "  high  seas  " 
would  be  limited  to  the  open,  unenclosed  waters  of  the  ocean.  But  as 
there  are  other  seas  besides  the  ocean,  there  must  be  high  seas  other 
than  those  of  the  ocean.  A  large  commerce  is  conducted  on  seas  other 
than  the  ocean  and  the  English  seas,  and  it  is  equally  necessary  to  dis- 
tinguish between  their  open  waters  and  their  ports  and  havens,  and  to 
provide  for  offences  on  vessels  navigating  those  waters  and  for  colli- 
sions between  them.  The  term  "high  seas  "  does  not,  in  either  case, 
indicate  any  separate  and  distinct  body  of  water  ;  but  only  the  open 
waters  of  the  sea  or  ocean,  as  distinguislied  from  ports  and  havens  and 
waters  within  narrow  headlands  on  the  coast.  This  distinction  was 
observed  by  Latin  writers  between  the  ports  and  havens  of  the  Medi- 
terranean and  its  open  waters  —  the  latter  being  termed  the  high  seas,'^ 
In  that  sense  the  term  may  also  be  properly  used  in  reference  to  the 
open  waters  of  the  Baltic  and  the  Black  Sea,  both  of  which  are  inland 
seas,  finding  their  way  to  the  ocean  by  a  narrow  and  distant  channel. 
Indeed,  wherever  there  are  seas  in  fact,  free  to  the  navigation  of  all 
nations  and  people  on  their  borders,  their  open  watei"S  outside  of  the 
portion  "  surrounded  or  enclosed  between  narrow  headlands  or  promon- 
tories," on  the  coast,  as  stated  by  Mr.  Justice  Story,  or  "without  the 
body  of  a  county,"  as  declared  by  Sir  ^Matthew  Hale,  are  properly 
characterized  as  high  seas,  by  whatever  name  the  bodies  of  water  of 
which  they  are  a  part  may  be  designated.  Their  names  do  not  deter- 
mine their  character.  There  are,  as  said  above,  high  seas  on  the 
Mediterranean  (meaning  outside  of  the  enclosed  waters  along  its  coast), 
upon  which  the  principal  commerce  of  the  ancient  world  was  conducted 
and  its  great  naval  battles  fought.  To  hold  that  on  such  seas  there 
are  no  high  seas,  within  the  true  meaning  of  tliat  term,  that  is,  no  open, 
unenclosed  waters,  free  to  the  navigation  of  all  nations  and  people  on 

1  "  Insula  portum 
Efficit  objectu  laterum,  qiiihus  oiuiiis  ab  aito 
Frangitur,  inque  sinus  sciiidit  sese  iinda  reihiclos." 

—  The  ^'Eneid,  Lib.  1,  v.  150-161. 


CHAP.  I.]  UNITED    STATES    V.    RODGERS.  135 

their  borders,  would  be  to  place  upon  that  term  a  narrow  and  contracted 
meaning.  We  prefer  to  use  it  in  its  true  sense,  as  applicable  to  the 
open,  unenclosed  waters  of  all  seas,  than  to  adliere  to  the  common 
meaning  of  the  term  two  centuries  ago,  when  it  was  generally  limited 
to  the  open  waters  of  the  ocean  and  of  seas  surrounding  Great  Britain, 
the  freedom  of  which  was  then  the  principal  subject  of  discussion.  If 
it  be  conceded,  as  we  think  it  must  be,  that  the  open,  unenclosed 
waters  of  the  Mediterranean  are  high  seas,  that  concession  is  a  suffi- 
cient answer  to  the  claim  that  the  high  seas  always  denote  the  open 
waters  of  the  ocean. 

Whether  the  term  is  applied  to  the  open  waters  of  the  ocean  or  of  a 
particular  sea,  in  any  case,  will  depend  upon  the  context  or  circum- 
stances attending  its  use,  which  in  all  cases  affect,  more  or  less,  the 
meaning  of  language.  It  may  be  conceded  that  if  a  statement  is  made 
that  a  vessel  is  on  the  high  seas,  without  any  qualification  by  language 
or  circumstance,  it  will  be  generally  understood  as  meaning  that  the 
vessel  is  upon  the  open  waters  of  one  of  the  oceans  of  the  world.  It 
is  true,  also,  that  the  ocean  is  often  spoken  of  by  writers  on  public  law 
as  the  sea,  and  characteristics  are  then  ascribed  to  the  sea  generally 
which  are  properly  applicable  to  the  ocean  alone ;  as,  for  instance,  that 
its  open  waters  are  the  highway  of  all  nations.  Still  the  fact  remains 
that  there  are  other  seas  than  the  ocean  whose  open  waters  constitute 
a  free  highway  for  navigation  to  the  nations  and  people  residing  on 
their  borders,  and  are  not  a  free  highwa}'  to  other  nations  and  people, 
except  there  be  free  access  to  those  seas  by  open  waters  or  by  conven- 
tional arrangements. 

As  thus  defined,  the  term  would  seem  to  be  as  applicable  to  the  open 
waters  of  the  great  northern  lakes  as  it  is  to  the  open  waters  of  those 
bodies  usually  designated  as  seas.  The  Great  Lakes  possess  every 
essential  characteristic  of  seas.  They  are  of  large  extent  in  length  and 
breadth  ;  they  are  navigable  the  whole  distance  in  either  direction  by 
the  largest  vessels  known  to  commerce ;  objects  are  not  distinguishable 
from  the  opposite  sliores  ;  they  separate,  in  many  instances.  States, 
and  in  some  instances  constitute  the  boundary  between  independent 
nations  ;  and  their  waters,  after  passing  long  distances,  debouch  into 
the  ocean.  The  fact  that  their  waters  are  fresh  and  not  subject  to  the 
tides,  does  not  affect  their  essential  character  as  seas.  Many  seas  are 
tideless,  and  the  waters  of  some  are  saline  only  in  a  very  slight  degree. 

The  waters  of  Lake  Superior,  the  most  northern  of  tliese  lakes,  after 
traversing  nearly  400  miles,  with  an  average  breadth  of  over  100  miles, 
and  those  of  Lake  ^Michigan,  which  extend  over  350  miles,  with  an 
average  breadth  of  65  miles,  join  Lake  Huron,  and,  after  flowing  about 
250  miles,  with  an  average  breadth  of  70  miles,  pass  into  the  river  St. 


136  STATES.  [part  I. 

Clair;  thence  through  the  small  lake  of  St.  Clair  into  the  Detroit 
River ;  thence  into  Lake  Erie  and,  by  the  Niagara  River,  into  Lake 
Ontario;  whence  they  pass,  by  the  river  St.  Lawrence,  to  the  ocean, 
making  a  total  distance  of  over  2,000  miles.  Ency.  Britannica,  vol.  21, 
p.  178.  The  area  of  the  Great  Lakes,  in  round  numbers,  is  100,000 
square  miles.  Ibid.  vol.  11,  p.  217.  They  are  of  larger  dimensions 
than  many  inland  seas  which  are  at  an  equal  or  greater  distance  from 
the  ocean.  The  waters  of  the  Black  Sea  travel  a  like  distance  before 
they  come  into  contact  with  the  ocean.  Their  first  outlet  is  through 
the  Bosphorus,  which  is  about  20  miles  long  and  for  the  .'greater  part 
of  its  way  less  than  a  mile  in  width,  into  the  sea  of  Marmora,  and 
through  that  to  the  Dardanelles,  which  is  about  40  miles  in  length  and 
less  than  four  miles  in  width,  and  then  they  find  their  way  through  the 
islands  of  the  Greek  Archipelago,  up  the  Mediterranean  Sea,  past  the 
Straits  of  Gibraltar  to  the  ocean,  a  distance,  also,  of  over  2,000  miles. 

In  the  Genesee  Chief  Case,  12  How.  443,  this  court,  in  considering 
whether  the  admiralty  jurisdiction  of  the  United  States  extended  to 
the  Great  Lakes,  and  speaking,  through  Chief  Justice  Taney,  of  the 
general  character  of  those  lakes,  said:  "These  lakes  are,  in  truth, 
inland  seas.  Different  States  border  on  them  on  one  side,  and  a  foreign 
nation  on  the  other.  A  great  and  growing  commerce  is  carried  on 
upon  them  between  different  States  and  a  foreign  nation,  which  is  sub- 
ject to  all  the  incidents  and  hazards  that  attend  commerce  on  the  ocean. 
Hostile  fleets  have  encountered  on  them,  and  prizes  been  made;  and 
every  reason  which  existed  for  the  grant  of  admiralty  jurisdiction  to 
the  general  Government  on  the  Atlantic  seas  applies  with  equal  force 
to  the  lakes.  There  is  an  equal  necessity  for  the  instance  and  for  the 
prize  power  of  the  admiralty  court  to  administer  international  law,  and 
if  the  one  cannot  be  established,  neither  can  the  other."     (p.  453.) 

After  using  this  language,  the  Chief  Justice  commented  upon  the 
inequality  which  would  exist,  in  the  administration  of  justice,  between 
the  citizens  of  the  States  on  the  lakes,  if,  on  account  of  the  absence  of 
tide  water  in  those  lakes,  they  were  not  entitled  to  the  remedies 
afforded  by  the  grant  of  admiralty  juris"diction  of  the  Constitution,  and 
the  citizens  of  the  States  bordering  on  the  ocean  or  upon  navigable 
waters  affected  by  the  tides.  The  court,  perceiving  that  the  reason 
for  the  exercise  of  tlie  jurisdiction  did  not  in  fact  depend  upon  the 
tidal  character  of  the  waters,  but  upon  their  practical  navigability  for 
the  purposes  of  commerce,  disregarded  the  test  of  tide  water  prevailing 
in  England  as  inapplicable  to  our  country  with  its  vast  extent  of  inland 
waters.  Acting  upon  like  considerations  in  the  application  of  the  term 
"  high  seas  "  to  the  waters  of  the  Great  Lakes,  which  are  equally  navi- 
gable, for  the  purposes  of  commerce,  in  all  respects,  with  the  bodies  of 


CHAP.  I.]  UNITED    STATES   V.    RODGERS,  137 

water  usually  designated  as  seas,  and  are  in  no  respect  affected  by  the 
tidal  or  saline  character  of  their  waters,  we  disregard  the  distinctions 
niade  between  salt  and  fresh  water  seas,  which  are  not  essential,  and 
hold  that  the  reason  of  the  statute,  in  providing  for  protection  against 
violent  assaults  on  vessels  in  tidal  waters,  is  no  greater  but  identical 
with  the  reason  for  providing  against  similar  assaults  on  vessels  in 
navigable  waters  that  are  neither  tidal  nor  saline.  The  statute  was 
intended  to  extend  protection  to  persons  on  vessels  belonging  to  citi- 
zens of  the  United  States,  not  only  upon  the  high  seas,  but  in  all 
navigable  waters  of  every  kind  out  of  the  jurisdiction  of  any  particular 
State,  whether  moved  by  the  tides  or  free  from  their  influence. 

The  character  of  these  lakes  as  seas  was  recognized  by  this  court  in 
the  recent  Chicago  Lake  Front  Case^  where  we  said:  "These  lakes 
possess  all  the  general  characteristics  of  open  seas,  except  in  the  fresh- 
ness of  their  waters,  and  in  the  absence  of  the  ebb  and  flow  of  the  tide." 
"  In  other  respects,"  we  added,  "they  are  inland  seas,  and  there  is  no 
reason  or  principle  for  the  assertion  of  dominion  and  sovereignty  over 
and  ownership  by  the  State  of  lands  covered  by  tide  waters  that  is  not 
equally  applicable  to  its  ownership  of  and  dominion  and  sovereignty 
over  lands  covered  by  the  fresh  waters  of  these  lakes."  Illinois  Cen- 
tral Bailroad  v.  Illinois,  146  U.  S.  387,  435. 

It  is  to  be  observed  also  that  the  term  "  high  "  in  one  of  its  signifi- 
cations is  used  to  denote  that  which  is  common,  open,  and  public. 
Thus  every  road  or  way  or  navigable  river  which  is  used  freely  by  the 
public  is  a  "  high  "  way.  So  a  large  body  of  navigable  water  other 
than  a  river,  which  is  of  an  extent  beyond  the  measurement  of  one's 
unaided  vision,  and  is  open  and  unconfined,  and  not  under  the  exclusive 
control  of  any  one  nation  or  people,  but  is  the  free  highway  of  adjoin- 
ing nations  or  people,  must  fall  under  the  definition  of  "  high  seas  " 
within  the  meaning  of  the  statute.  We  may  as  appropriately  designate 
the  open,  unenclosed  waters  of  the  lakes  as  the  high  seas  of  the  lakes, 
as  to  designate  similar  waters  of  the  ocean  as  the  high  seas  of  the 
ocean,  or  similar  waters  of  the  Mediterranean  as  the  high  seas  of  the 
Mediterranean. 

The  language  of  section  5346,  immediately  following  the  term  "  high 
seas,"  declaring  the  penalty  for  violent  assaults  when  committed  on 
board  of  a  vessel  in  any  arm  of  the  sea  or  in  any  river,  haven,  creek, 
basin,  or  bay,  within  the  admiralty  jurisdiction  of  the  United  States, 
and  out  of  the  jurisdiction  of  any  particular  State,  equally  as  when 
committed  on  board  of  a  vessel  on  the  high  seas,  lends  force  to  the 
construction  given  to  that  term.  The  language  used  must  be  read  in 
conjunction  with  that  term,  and  as  referring  to  navigable  waters  out 
of  the  jurisdiction  of  any  particular  State,  but  connecting  with  the 


138  STATES.  [part  I. 

high  seas  meutioued.  The  Detroit  River,  upon  which  was  the  steamer 
Alaska  at  the  time  the  assault  was  committed,  connects  the  waters  of 
Lake  Huron  (with  which,  as  stated  above,  the  waters  of  Lake  Superior 
and  Lake  Michigan  join)  with  the  waters  of  Lake  Erie,  and  separates 
the  Dominion  of  Canada  from  the  United  States,  constituting  the 
boundary  between  them,  the  dividing  line  running  nearly  midway  be- 
tween its  banks,  as  established  by  commissioners,  pursuant  to  the 
treaty  between  the  two  countries.  8  Stat.  274,  276.  The  river  is 
about  22  miles  in  length  and  from  one  to  three  miles  in  width,  and  is 
navigable  at  all  seasons  of  the  year  by  vessels  of  the  largest  size.  The 
number  of  vessels  passing  through  it  each  year  is  immense.  Between 
the  years  1880  and  1892,  inclusive,  they  averaged  from  thirty-one  to 
forty  thousand  a  year,  having  a  tonnage  varying  from  sixteen  to  twenty- 
four  millions.  In  traversing  the  river  they  are  constantly  passing 
from  the  territorial  jurisdiction  of  the  one  nation  to  that  of  the  other. 
All  of  them,  however,  so  far  as  transactions  had  on  board  are  concerned, 
are  deemed  to  be  within  the  country  of  their  owners.  Constructively 
they  constitute  a  part  of  the  territory  of  the  nation  to  which  the  owners 
belong.  Whilst  they  are  on  the  uavdgable  waters  of  the  river  they  are 
within  the  admiralty  jurisdiction  bf  that  country.  This  jurisdiction 
is  not  changed  by  the  fact  that  each  of  the  neighboring  nations  may 
in  some  cases  assert  its  own  authority  over  persons  on  such  vessels  in 
relation  to  acts  committed  by  them  within  its  territorial  limits.  In 
what  cases  jurisdiction  by  each  country  will  be  thus  asserted  and  to 
what  extent,  it  is  not  necessary  to  inquire,  for  no  question  on  that 
point  is  presented  for  our  consideration.  The  general  rule  is  that  the 
country  to  which  the  vessel  belongs  will  exercise  jurisdiction  over  all 
matters  affecting  the  vessel  or  those  belonging  to  her,  without  inter- 
ference of  the  local  government,  unless  they  involve  its  peace,  dignity, 
or  tranquillity,  in  which  case  it  may  assert  its  authority.  WUdenldis's 
Case,  120  U.  S.  1, 12 ;  Halleck  on  International  Law,  c.  vii,  §  26,  p.  172. 
The  admiralty  jurisdiction  of  the  country  of  the  owners  of  the  steamer 
upon  which  the  offence  charged  was  committed  is  not  denied.  They 
being  citizens  of  the  United  States,  and  the  steamer  being  upon  navi- 
gable waters,  it  is  deemed  to  be  within  the  admiralty  jurisdiction  of 
the  United  States.  It  was,  therefore,  perfectly  competent  for  Congress 
to  enact  tliat  parties  on  board  committing  an  assault  with  a  dangerous 
weapon  should  be  punished  when  brought  within  the  jurisdiction  of 
the  District  Court  of  the  United  States.  But  it  will  hardly  be  claimed 
tliat  Congress  by  the  legislation  in  question  intended  that  violent 
assaults  committed  upon  persons  on  vessels  owned  by  citizens  of  the 
United  States  in  the  Detroit  River,  without  the  jurisdiction  of  any 
particular  State,  should  be  punished,  and  that  similar  oifences  upon 


CHAP.  I.]  UNITED    STATES   V.    KODGERS.  139 

persons  on  vessels  of  like  owners  upon  the  adjoining  lakes  should  be 
unprovided  for.  If  the  law  can  be  deemed  applicable  to  offences  com- 
mitted on  vessels  in  any  navigable  river,  haven,  creek,  basin,  or  bay, 
connecting  with  the  lakes,  out  of  the  jurisdiction  of  any  particular 
State,  it  would  not  be  reasonable  to  suppose  that  Congress  intended 
that  no  remedy  should  be  atforded  for  similar  offences  committed  on 
vessels  upon  the  lakes,  to  which  the  vessels  on  the  river,  in  almost  all 
instances,  are  directed,  and  upon  whose  waters  they  are  to  be  chiefly 
engaged.  The  more  reasonable  inference  is  that  Congress  intended  to 
include  the  open,  unenclosed  waters  of  the  lakes  under  the  designation 
of  high  seas.  The  term,  in  the  eye  of  reason,  is  applicable  to  the  open, 
unenclosed  portion  of  all  large  bodies  of  navigable  waters,  whose  extent 
cannot  be  measured  by  one's  vision,  and  the  navigatien  of  which  is 
free  to  all  nations  and  people  on  their  borders,  by  whatever  names 
those  bodies  may  be  locally  designated.  In  some  countries  small  lakes 
are  called  seas,  as  in  the  case  of  the  Sea  of  Galilee,  in  Palestine.  In 
other  countries  large  bodies  of  water,  greater  than  many  bodies  de- 
nominated seas,  are  called  lakes,  gulfs,  or  basins.  The  nomenclature, 
however,  does  not  change  the  real  character  of  either,  nor  should  it 
affect  our  construction  of  terms  properly  applicable  to  the  waters  of 
either.  By  giving  to  the  term  "high  seas  "  the  construction  indicated, 
there  is  consistency  and  sense  in  the  whole  statute,  but  there  is  neither 
if  it  be  disregarded.  If  the  term  applies  to  the  open,  unenclosed 
waters  of  the  lakes,  the  application  of  the  legislation  to  the  case  under 
indictment  cannot  be  questioned,  for  the  Detroit  River  is  a  water  con- 
necting such  high  seas,  and  all  that  portion  which  is  north  of  the 
boundary  line  between  the  United  States  and  Canada  is  without  the 
jurisdiction  of  any  State  of  the  Union.  But  if  they  be  considered  as 
not  thus  applying,  it  is  difficult  to  give  any  force  to  the  rest  of  the 
statute  without  supposing  that  Congress  intended  to  provide  against 
violence  on  board  of  vessels  in  navigable  rivers,  havens,  creeks,  basins, 
and  bays,  without  the  jurisdiction  of  any  particular  State,  and  inten- 
tionally omitted  the  much  more  important  provision  for  like  violence 
and  disturbances  on  vessels  upon  the  Great  Lakes.  All  vessels  in  any 
navigable  river,  haven,  creek,  basin,  or  bay  of  the  lakes,  whether 
within  or  without  the  jurisdiction  of  any  particular  State,  would  some 
time  find  their  way  upon  the  waters  of  the  lakes;  and  it  is  not  a  rea- 
sonable inference  that  Congress  intended  that  the  law  should  apply  to 
offences  only  on  a  limited  portion  of  the  route  over  which  the  vessels 
were  expected  to  pass,  and  that  no  provision  should  be  made  for  such 
offences  over  a  much  greater  distance  on  the  lakes. 

Congress  in  thus  designating  the  open,  unenclosed  i)ortion  of  large 
bodies  of  water,  extending  beyond  one's  vision,  naturally  used  the  same 


140  STATES.  [part  L 

term  to  indicate  it  as  was  used  with  reference  to  similar  portions  of  the 
ocean  or  of  bodies  which  had  been  designated  as  seas.  When  Con- 
gress, in  1790,  first  used  that  term  the  existence  or  the  Great  Lakes 
was  known  ;  they  had  been  visited  by  great  numbers  of  persons  in 
trading  with  the  neighboring  Indians,  and  their  immense  extent  and 
character  were  generally  understood.  Much  more  accurate  was  this 
knowledge  when  the  act  of  March  3,  1825,  was  passed,  4  Stat.,  115, 
c.  65,  and  when  the  provisions  of  section  5346  were  re-enacted  in  the 
Revised  Statutes  in  1874.  In  all  these  cases,  when  Congress  provided 
for  the  punishment  of  violence  on  board  of  vessels,  it  must  have 
intended  that  the  provision  should  extend  to  vessels  on  those  waters 
the  same  as  to  vessels  on  seas,  technically  so  called.  There  were  no 
bodies  of  water  in  the  United  States  to  any  portion  of  which  the  term 
"  high  seas  "  was  applicable  if  not  to  the  open,  unenclosed  waters  of 
the  Great  Lakes.  It  does  not  seem  reasonable  to  suppose  that  Congress 
intended  to  confine  its  legislation  to  the  high  seas  of  the  ocean,  and  to 
its  navigable  rivers,  havens,  creeks,  basins,  and  bays,  without  the 
jurisdiction  of  any  State,  and  to  make  no  provision  for  offences  on  those 
vast  bodies  of  inland  waters  of  the  United  States.  There  are  vessels 
of  every  description  on  those  inland  seas  now  carrying  on  a  commerce 
greater  than  the  commerce  on  any  other  inland  seas  of  the  world. 
And  we  cannot  believe  that  the  Congress  of  the  United  States  purposely 
left  for  a  century  those  who  navigated  and  those  who  were  conveyed 
in  vessels  upon  those  seas  without  any  protection. 

The  statute  under  consideration  provides  that  every  person  who, 
upon  the  high  seas  or  in  any  river  connecting  with  them,  as  we  construe 
its  language,  within  the  admiralty  jurisdiction  of  the  United  States, 
and  out  of  the  jurisdiction  of  any  particular  State,  commits,  on  board 
of  any  vessel  belonging  in  whole  or  in  part  to  the  United  States,  or 
any  citizen  thereof,  an  assault  on  another  with  a  dangerous  weapon  or 
with  intent  to  perpetrate  a  felony,  shall  be  punished,  &c.  The  Detroit 
River,  from  shore  to  shore,  is  within  the  admiralty  jurisdiction  of  the 
United  States,  and  connects  with  the  open  waters  of  the  lakes  —  high 
seas,  as  we  hold  them  to  be,  within  the  meaning  of  the  statute.  From 
the  boundary  line,  near  its  centre,  to  the  Canadian  shore  it  is  out  of 
the  jurisdiction  of  the  State  of  Michigan.  The  case  presented  is 
therefore  directly  within  its  provisions.  The  act  of  Congress  of  Sep- 
tember 4.  1890,  26  Stat.  424,  chap.  874  (1  Sup.  to  the  Rev.  Stat.,  chap. 
874,  p.  799),  providing  for  the  punishment  of  crimes  subsequently 
committed  on  the  Great  Lakes,  does  not,  of  course,  affect  the  construc- 
tion of  the  law  previously  existing. 

We  are  not  unmindful  of  the  fact  tliat  it  was  held  by  the  Supreme 
Court  of  Michigan  in  People  v.  Tyler,  1  Michigan,  161,  that  the  criminal 


CHAP.  I.]  UNITED    STATES    V.    RODGERS.  141 

jurisdiction  of  the  Federal  courts  did  not  extend  to  offences  committed 
upon  vessels  on  the  lakes.  The  judges  who  rendered  that  decision 
Avere  able  and  distinguished  ;  but  that  fact,  wliilst  it  justly  calls  for  a 
careful  consideration  of  their  reasoning,  does  not  render  their  conclu- 
sion binding  or  authoritative  upon  this  court.  Their  opinions  show 
that  they  did  not  accept  the  doctrine  extending  the  admiralty  juris- 
diction to  cases  on  the  lakes  and  navigable  rivers,  which  is  now  gener- 
all}^  we  might  say  almost  universally,  received  as  sound  by  the  judicial 
tribunals  of  the  country.  It  is  true,  as  there  stated,  that,  as  a  general 
principle,  tlie  criminal  laws  of  a  nation  do  not  operate  beyond  its  terri- 
torial limits,  and  that  to  give  any  government,  or  its  judicial  tribunals, 
the  right  to  punish  any  act  or  transaction  as  a  crime,  it  must  liave 
occurred  within  those  limits.  We  accept  this  doctriue  as  a  general 
rule,  but  there  are  exceptions  to  it  as  fully  recognized  as  the  doctrine 
itself.  One  of  those  exceptions  is  that  offences  committed  upon  vessels 
belonging  to  citizens  of  the  United  States,  within  their  admiralty 
jurisdiction  (that  is,  within  navigable  waters),  though  out  of  the  ter- 
ritorial limits  of  the  United  States,  may  be  judicially  considered  when 
the  vessel  and  parties  are  brought  within  their  territorial  jurisdiction. 
As  we  have  before  stated,  a  vessel  is  deemed  part  of  the  territory  of 
the  country  to  which  she  belongs.  Upon  that  subject  we  quote  the 
language  of  Mr.  Webster,  while  Secretary  of  State,  in  his  letter  to  Lord 
Ashburton  of  August,  1842.  Speaking  for  the  government  of  the 
United  States,  he  stated  with  great  clearness  and  force  the  doctrine 
which  is  now  recognized  by  all  countries.  He  said  :  ''  It  is  natural  to 
consider  the  vessels  of  a  nation  as  parts  of  its  territorv,  though  at  sea, 
as  the  state  retains  its  jurisdiction  over  them  ;  and,  according  to  the 
commonly  received  custom,  this  jurisdiction  is  preserved  over  the  ves- 
sels even  in  parts  of  the  sea  subject  to  a  foreign  dominion.  This  is 
the  doctrine  of  the  law  of  nations,  clearly  laid  down  by  writers  of 
received  authority,  and  entirely  conformable,  as  it  is  supposed,  with 
the  practice  of  modern  nations.  If  a  murder  be  committed  on  board 
of  an  American  vessel  by  one  of  the  crew  upon  another  or  upon  a  pas- 
senger, or  by  a  passenger  on  one  of  the  crew  or  another  passenger, 
while  such  vessel  is  lying  in  a  port  within  the  jurisdiction  of  a  foreign 
state  or  sovereignty,  the  offence  is  cognizable  and  punishable  by  the 
proper  court  of  the  United  States  in  the  same  manner  as  if  such  offence 
had  been  committed  on  board  the  vessel  on  the  high  seas.  The  law  of 
England  is  supposed  to  be  the  same.  It  is  true  that  the  jurisdiction 
of  a  nation  over  a  vessel  belonging  to  it,  while  lying  in  the  port  of 
another,  is  not  necessarily  wholly  exclusive.  We  do  not  so  consider 
or  so  assert  it.  For  any  unlawful  acts  done  by  her  while  thus  lying  in 
port,  and  for  all  contracts  entered  into  while  there,  by  her  master  or 


142  STATES.  [part  I. 

owners,  she  and  they  must,  doubtless,  be  answerable  to  the  laws  of  the 
place.  Xor,  if  her  master  or'  crew,  while  on  board  in  such  port,  break 
the  peace  of  the  community  by  the  commission  of  crimes,  can  exemption 
be  claimed  for  tliem.  But,  nevertheless,  the  law  of  nations,  as  I  have 
stated  it,  and  the  statutes  of  governments  founded  on  that  law,  as  I 
have  referred  to  them,  show  that  enlightened  nations,  in  modern  times, 
do  clearly  hold  that  the  jurisdiction  and  laws  of  a  nation  accompany 
her  ships  not  only  over  the  high  seas,  but  into  ports  and  harbors,  or 
wheresoever  else  the}'  may  be  water-borne,  for  the  general  purpose  of 
governing  and  regulating  the  rights,  duties,  and  obligations  of  those 
on  board  thereof,  and  that,  to  the  extent  of  the  exercise  of  this  juris- 
diction, tliey  are  considered  as  parts  of  the  territory  of  the  nation 
herself."     6  Webster's  Works,  306,  307. 

We  do  not  accept  the  doctrine  that,  because  by  the  treaty  between 
the  United  States  and  Great  Britain  the  boundary  line  between  the 
two  countries  is  run  through  the  centre  of  the  lakes,  their  character  as 
seas  is  changed,  or  that  the  jurisdiction  of  the  United  States  to  regu- 
late vessels  belonging  to  their  citizens  navigating  those  waters  and  to 
punisli  offences  committed  upon  such  vessels,  is  in  any  respect  impaired. 
Whatever  effect  may  be  given  to  the  boundary  line  between  the  two 
countries,  the  jurisdiction  of  the  United  States  over  the  vessels  of 
their  citizens  navigating  those  waters  and  the  persons  on  board  remains 
unaffected.  The  limitation  to  the  jurisdiction  by  the  qualification  that 
the  offences  punishable  are  committed  on  vessels  in  any  arm  of  the  sea, 
or  in  any  river,  haven,  creek,  basin,  or  bay  "without  the  jurisdiction 
of  any  particular  State,"  which  means  without  the  jurisdiction  of  any 
State  of  the  Union,  does  not  apply  to  vessels  on  the  "  high  seas  "  of 
the  lakes,  but  onW  to  vessels  on  the  waters  designated  as  connecting 
with  them.  So  far  as  vessels  on  those  seas  are  concerned,  there  is  no 
limitation  named  to  the  authorit}"  of  the  United  States.  It  is  true 
that  lakes,  properly  so  called,  that  is,  bodies  of  water  whose  dimensions 
are  capable  of  measurement  by  the  unaided  vision,  within  the  limits 
of  a  State,  are  part  of  its  territory  and  subject  to  its  jurisdiction,  but 
bodies  of  water  of  an  extent  which  cannot  be  measured  by  the  unaided 
vision,  and  which  are  navigable  at  all  times  in  all  directions,  and  border 
on  different  nations  or  States  or  people,  and  find  their  outlet  in  the 
ocean  as  in  the  present  case,  are  seas  in  fact,  however  they  may  be 
designated.  And  seas  in  fact  do  not  cease  to  be  such,  and  become 
lakes,  because  by  local  custom  they  may  be  so  called.^ 

^  Dissenting  opinions  of  Mr.  Justice  Gray  and  Mr.  Justice  Brown  omitted. 
Distinguislied  in  U.  S.  v.  Peterson,  1894,  64  Fed.  145 ;  Bigeloic  v.   Xickersop,  1895, 
70  Fed.  116. 

For  international  controversies   concerning   sounds   and   straits,   see  the  Danish 


CHAP.  I.]  THE   ALLEGANEAN.  143 

(c)  Bays. 

THE  "  ALLEGAXEA^T." 

(STETSOX  V.  THE  UNITED  STATES.) 

Court  of  Commissioxers  of  Alabama  Claims,  1885. 

(32  Albany  Law  Journal,  484;  4  Moore's  International  Arbitration,  4333;  5    id.  4675.) 

Claim  to  recover  damages  for  destruction  of  a  vessel.  The  opinion 
states  the  facts. 

Henry  M.  Baker,  for  claimants. 

John  H.  A.  Creswell,  for  United  States. 

Draper,  J.,  delivered  the  opinion  of  the  court.^ 

The  facts  upon  which  a  judgment  to  the  amount  of  $69,334.80  is 
prayed  for  in  this  case  are  substantially  as  follows  : 

The  ship  Alleganean,  .duly  registered  at  the  port  of  Xew  York,  and 
being  recently  repaired  and  well  equipped,  and  entitled  to  the  protec- 
tion of  the  United  States,  cleared  with  a  cargo  from  the  port  of 
Baltimore  on  the  22d  of  October,  1862,  upon  a  voyage  to  London. 
Six  days  later,  at  about  10.30  o'clock  in  the  evening,  being  at  anchor, 
through  rough  water  in  Chesapeake  Bay,  south  of  the  mouth  of  the 
Kappahannock  River,  and  opposite  Guinn's  Island,  she  was  boarded 
by  some  eighteen  officers  and  men  of  the  Confederate  navy,  commanded 
by  Lieutenants  John  Taylor  Wood  and  S.  Smith  Lee.  These  leaders 
were  commissioned  officers  in  the  Confederate  navy,  and  in  the  attack 
upon  the  Alleganean  they  were  acting  under  the  special  orders  of  the 
Secretary  of  the  Navy  of  the  Confederate  States,  and  the  men 
accompanying  them  had  been  specially  detailed  from  the  James  River 
squadron,  for  the  purpose  of  preying  upon  United  States  merchant 
vessels  in  Chesapeake  Bay.  They  came  overland  to  Chesapeake  Bay 
from  the  Patrick  Henry,  an  armed  and  commissioned  Confederate 
vessel,  and  securing  two  or  three  small  vessels  —  the  largest  being  of 
fifteen  or  twenty  tons  burden  — had  been  cruising  about  two  or  three 
nights  before  the  attack.  The  precise  relationship  which  these  vessels 
bore  to  the  Confederate  nav}'-  is  left  by  the  evidence  in  some  doubt. 

Lieutenant  Wood  says  of  the  vessel  in  which  he  operated:  '"'She 

Claim  to  sound  dues  (Dana's  Wheaton,  264-267;  Snow's  Am.  Dip.  124-127) ;  The 
Bosphorus  and  Dardanelles,  (Dana's  Wlieaton,  263-264,  273-274,  Dana's  note,  No.  Ill ; 
Schuyler's  Am.  Dip.,  317).  — Ed. 

^  Hon.  Andrew  S.  Draper,  LL.D.,  now  President  of  the  University  of  Illinois.  —  Ed. 


144  STATES.  [part  I. 

was  a  boat  fitted  out  for  this  purpose,  and  attached  to  the  squadron  as 
a  tender.  She  was  about  fifteen  or  tvventy  tons,  armed  as  customary 
with  this  class  of  boats.  *  *  *  The  tender  which  I  commanded  was 
one  belonging  to  a  regular  commissioned  ship  of  the  Confederate 
States  navy."  Lieutenant  Lee  says:  "We  had  two  small  boats  that 
we  obtained  on  the  bay  shore,  with  sails  and  a  sailing  skiff  we  cap- 
tured from  two  Union  men.  No  boats  were  brought  from  Richmond 
or  from  any  Confederate  cruiser." 

There  is  no  proof,  and  it  was  not  contended  iipon  the  argument, 
that  they  were  either  "  in  commission  "  of,  or  that  they  bore  letters  of 
marque  from,  the  Confederate  government,  but  there  seems  to  be 
ample  evidence  that  the  crews  were  a  part  of  the  naval  forces  of  that 
government,  attached  to  duly  commissioned,  armed  war  vessels,  and 
now  only  temporarily  detached  therefrom,  and  coming  directly  from 
such  a  vessel  for  this  special  service,  under  orders  of  their  Secretary 
of  the  Navy.  These  small  boats  seem  to  have  carried  no  armament. 
Lieutenant  Wood  says:  "The  vessels  were  armed  as  customary  with 
this  class  of  boats,"  and  that  "  the  men  were  armed  and  equipped  as 
men-of-war's  men."  Lieutenant  Lee  says,  "  The  vessels  carried  no 
guns,  but  the  men  were  armed  with  cutlasses  and  pistols." 

This  force  boarded  the  Alleganean,  as  stated,  speedily  reduced  the 
crew  of  that  vessel  to  subjection  and  the  state  of  prisoners  of  war, 
and  then  burned  the  ship,  totally  destroying  her,  except  that  some  few 
remnants  were  afterwards  picked  up  and  disposed  of,  the  proceeds  of 
which  the  owners  account  for  in  making  up  their  claim. 

The  value  of  the  Alleganean  at  the  time  of  loss  is  ])laced  by  the 
marine  experts  on  behalf  of  the  Government  at  $52,591.03,  and  by  the 
witnesses  for  the  claimants  at  amounts  varying  from  $60,000  to 
$75,000.  The  evidence  seems  to  establish  beyond  question  the  fact 
that  the  vessel  was  more  than  four  miles  from  any  shore  at  the  time 
of  capture  and  destruction. 

The  claimant's  counsel,  with  his  case  as  exhaustively  prepared  and 
as  fully  and  ably  argued  as  any  which  has  been  before  this  court,  con- 
tends that  these  facts  establish  a  right  to  a  judgment,  as  of  the  first 
class,  under  the  provisions  of  section  5  of  the  act  of  June  5,  1882, 
being  a  claim  "  directly  resulting  from  damage  done  on  the  high  seas 
by  Confederate  cruisers  during  the  late  rebellion,  including  vessels  and 
cargoes  attacked  on  the  high  seas,  although  the  loss  or  damage 
occurred  within  four  miles  of  the  shore." 

The  learned  counsel  on  behalf  of  the  United  States  insists  that  the 
claimants  ought  not  to  recover. 

First,  because  all  the  waters  of  Chesapeake  Bay,  even  such  as  are 
more  than  a  marine  league  from  shore,  are  territorial  waters  of  the 


CHAP.  I.]  THE   ALLEGANEAN.  145 

United  States,  and  subject  to  the  exclusive  control  and  jurisdiction 
thereof,  and  that  in  consequence  the  Allefjanean  was  not  attacked  nor 
the  damage  done  on  the  "high  seas"  within  the  meaning  of  the  term 
as  used  in  the  act  under  which  judgment  is  claimed. 

Second,  because  the  persons  who  destroyed  the  ship  and  the  vessels 
employed  by  them  did  not  constitute  a  "Confederate  cruiser"  within 
the  meaning  of  that  term  as  used  in  the  statute. 

The  term  "  high  seas  "  as  used  by  legislative  bodies,  the  courts  and 
text-writers,  has  been  construed  to  express  a  widely  different  meaning. 
As  used  to  define  the  jurisdiction  of  admiralty  courts,  it  is  held  to 
mean  the  waters  of  the  ocean  exterior  to  low-water  mark.  As  used 
in  international  law,  to  fix  the  limits  of  the  open  ocean,  upon  which 
all  peoples  possess  common  rights,  the  "great  highway  of  nations," 
it  has  been  held  to  mean  only  so  much  of  the  ocean  as  is  exterior  to 
a  line  running  parallel  with  the  shore,  and  some  distance  therefrom, 
commonly  such  distance  as  can  be  defended  by  artillery  upon  the 
shore,  and,  therefore,  a  cannon-shot  or  a  marine  league  (three  nautical 
or  four  statute  miles).  This  court,  after  very  able  argument  by 
learned  counsel,  and  after  much  deliberation,  has  held  that  the  term 
was  used  in  the  act  of  June  5,  1882,  in  the  same  sense  in  which  it  is 
employed  by  the  international  law  writers.     Rich  v.  United  States. 

From  this  it  necessarily  follows  that  such  portions  of  the  waters  of 
Chesapeake  Bay  .as  are  within  four  miles  of  either  shore  form  no  part 
of  the  high  seas.  But  much  of  the  bay  is  more  than  four  miles  from 
shore,  and  is  accessible  from  the  ocean  without  coming  within  that 
distance  of  the  land.  The  distance  between  Cape  Henry  and  Cape 
Charles,  at  the  entrance  of  the  bay,  is  said  to  be  twelve  miles,  and  it 
is  stated  that  lines  starting  from  points  between  the  Capes,  four  miles 
from  each,  and  running  up  the  bay  that  distance  from  either  shore, 
would  not  intercept  each  other  within  125  miles  from  the  starting 
points.  The  evidence  shows  that  the  Alleganeati  was  anchored  between 
such  lines  at  the  time  of  destruction.  Was  she  upon  the  high  seas  as 
the  court  defines  the  statutory  term  ? 

By  common  agreement  all  the  authorities  assert  that  there  are  arms 
or  inlets  of  the  ocean,  which  are  within  territorial  jurisdiction,  and  are 
not  high  seas.  Sir  R.  Phillimore  (1  Int.  Law,  §200),  says  :  "  Besides 
the  rights  of  property  and  jurisdiction  within  the  limit  of  cannon-shot 
from  the  shore,  there  are  certain  portions  of  the  sea  which,  though 
they  exceed  this  verge,  may  under  special  circumstances  be  prescribed 
for.  Maritime  territorial  rights  extend,  as  a  general  rule,  over  arms 
of  the  sea,  bays,  gulfs,  estuaries,  which  are  enclosed,  but  not  entirely 
surrounded,  by  lands  belonging  to  one  and  the  same  State.  *  *  * 
Thus  Great  Britain  has  immemorially  claimed  and  exercised  exclusive 

10 


146  STATES.  [part  I. 

property  and  jurisdiction  over  the  bays  or  portions  of  the  sea  cut  ofE 
by  lines  drawn  from  one  promontory  to  another,  and  called  the  King's 
Chambers."  Grotius  (bk.  11,  ch.  3,  §§7,  8),  and  Vattel  (vol.  1,  bk. 
1,  ch.  23,  §  291)  assert  substantially  the  same  doctrine,  and  the  later 
■writers  follow  them.     Wheat.  Tnt.  Law  (Dana's  8th  Ed.,  p.  255)  says  : 

"  The  maritime  territory  of  every  state  extends  to  the  ports, 
harbors,  bays,  mouths  of  rivers,  and  adjacent  parts  of  the  sea,  inclosed 
by  headlands,  belonging  to  the  same  state.  The  usage  of  nations 
superadds  to  this  extent  of  territorial  jurisdiction  a  distance  of  a 
marine  league,  or  as  far  as  a  cannon-shot  will  reach  from  the  shore, 
along  the  coasts  of  the  state.  Within  these  limits  its  rights  of 
property  and  territorial  jurisdiction  are  absolute,  and  exclude  those  of 
every  other  nation."  Chancellor  Kent  avows  the  general  doctrine  and 
makes  very  much  broader  claims  in  reference  to  the  jurisdiction  of  the 
United  States  over  adjacent  waters,  and  says  (Com.,  vol.  l,pp.  29,30)  : 

"  Considering  the  great  line  of  the  American  coasts,  we  have  a  right 
to  claim  for  fiscal  and  defensive  regulations  a  liberal  extension  of 
maritime  jurisdiction ;  and  it  would  not  be  unreasonable,  as  I  appre- 
hend, to  assume,  for  domestic  purposes  connected  with  our  safety  and 
welfare,  the  control  of  Avaters  on  our  coasts,  though  included  Avithin 
lands  stretching  from  quite  distant  headlands,  as,  for  instance,  from 
Cape  Ann  to  Cape  Cod,  and  from  Nantucket  to  Montauk  Point,  and 
from  that  point  to  the  Capes  of  the  Delaware,  and  from  the  South 
Cape  of  Florida  to  the  INIississippi." 

Dr.  Woolsey  (Int.  Law,  §  60),  upholds  the  general  doctrine,  but  thinks 
the  claims  of  Chancellor  Kent  are  too  broad,  and  rather  "out  of  char- 
acter for  a  nation  that  has  ever  asserted  the  freedom  of  doubtful 
waters,  as  well  as  contrary  to  the  spirit  of  more  recent  times." 

Dr.  Wharton  (Int.  Law,  §  192),  finishes  the  subject  with  the  con- 
clusion :  "  That  it  would  seem  more  proper  to  adopt  the  test  of 
cannon-shot,  *  *  *  which  would,  in  case  of  waters  whose  headlands 
belong  to  the  same  sovereign,  exclude  all  bays  more  than  eighteen 
miles  in  diameter,  assuming  the  range  of  cannon-shot  to  be  nine  miles. 
But  this  should  be  made  to  yield  to  usage.  If  a  particular  nation  has 
exercised  dominion  over  a  bay,  and  this  has  been  acquiesced  in  by 
other  nations,  then  the  bay  is  to  be  regarded  as  belonging  to  such 
nation." 

We  are  quite  certain  that  none  of  the  American  courts  have  passed 
upon  this  subject,  although  decisions  holding  that  specified  waters  are 
within  or  without  the  jurisdiction  of  the  admiralty  courts  are 
numerous.  The  question  has,  however,  been  before  the  English 
courts  upon  two  occasions  at  least. 

lieg.  V.  Cunningham,  Bell  Crown  Cas.  72,  was  the  case  of  a  crime 


CHAP.  I.]  THE    ALLEGANEAN.  147 

coiainitted  upon  an  American  vessel  lying  in  the  Bristol  Channel, 
about  three-quarters  of  a  mile  off  the  shores  of  the  county  of 
Glamorgan,  in  Wales,  but  below  or  exterior  to  low-water  mark,  and 
perhaps  ten  miles  from  the  shores  of  the  county  of  Somerset,  in 
England.  The  prisoners  were  indicted  and  tried  in  Glamorgan.  The 
question  was  whether  the  crime  was  committed  within  the  county  of 
Glamorgan  or  upon  the  high  seas.  It  was  held  that  it  was  within  the 
county.  This  crime  was  committed,  it  is  true,  within  the  marine 
league  from  shore,  but  the  court  did  not  rest  its  conclusion  upon  that 
ground.  Lord  Chief  Justice  Cockburn,  delivering  the  opinion  of  the 
court,  said  : 

"  Looking  at  the  local  situation  of  this  sea,  it  must  be  taken  to 
belong  to  the  counties,  respectively,  by  the  shores  of  which  it  is 
bounded.  *  *  *  The  whole  of  this  inland  sea,  between  the  counties  of 
Somerset  and  Glamorgan,  is  to  be  considered  as  within  the  counties  by 
the  shores  of  which  its  several  ports  are  respectively  bounded." 

But  perhaps  the  most  thoroughly  considered  and  important  case  is 
that  of  Direct  U.  S.  Cable  Co.  v.  Anglo-American  Tel.  Co.  in  the 
House  of  Lords  (2  App.  Cas.  394).  It  came  up  on  an  appeal  from  the 
Supreme  Court  of  Newfoundland,  against  an  order  confirming  an 
injunction  preventing  the  Direct  Cable  Company  from  landing  their 
wire  upon  the  soil  of  Newfoundland,  on  the  ground  that  it  would  be 
an  infringement  of  the  rights  of  the  Anglo-American  Company.  The 
cable,  as  a  matter  of  fact,  was  buoyed  in  Conception  Bay,  more  than  a 
marine  league  from  shore,  and  it  nowhere  came  within  that  distance 
from  the  shore,  purposely  to  avoid  coming  within  territorial  jurisdic- 
tion. But  it  was  asserted  that  the  whole  of  Conception  Bay  was 
within  the  territory  and  jurisdiction  of  Newfoundland.  The  Supreme 
Court  of  the  province  so  held,  and  the  determination  was  upheld  by 
the  House  of  Lords  in  a  somewhat  elaborate  opinion. 

This  opinion  states  that  Conception  Bay  is  a  body  of  water  having 
an  average  width  of  fifteen  miles,  a  distance  of  fortj'^  miles  from  the 
head  to  one  of  the  capes  at  the  entrance,  and  fifty  miles  to  the  other, 
and  a  distance  of  twenty  miles  between  the  headlands.  Coming  to  the 
question,  the  Lords  say  (p.  419)  : 

'•'  We  find  an  universal  agreement  that  harbors,  estuaries,  and  bays 
landlocked,  belong  to  the  territory  of  the  nation  which  possesses  the 
shores  round  them,  but  no  agreement  as  to  what  is  the  rule  to  deter- 
mine what  is  '  a  bay '  for  this  purpose. 

"It  seems  generally  agreed  that  where  the  configuration  and  dimen- 
sions of  the  bay  are  such  as  to  show  that  the  nation  occupying  the 
adjoining  coasts  also  occupies  the  bay,  it  is  part  of  the  territory,  and 
with  this  idea,  most  of  the  writers  on  the  subject  refer  to  defensi- 


148  STATES.  [part  I. 

bility  from  the  shore  as  the  test  of  occupation ;  some  suggesting, 
therefore,  a  width  of  one  cannon-shot  from  shore  to  shore,  or  tliree 
miles ;  some  a  cannon-shot  from  each  shore,  or  six  miles ;  some  an 
arbitrary  distance  of  ten  miles.  All  of  these  are  rules  which,  if 
adopted,  would  exclude  Conception  Bay  from  the  territory  of  New- 
foundland, but  also  would  have  excluded  from  the  territory  of  Great 
Britain  that  part  of  the  British  Channel  which  in  Reg.  v.  Cunningham 
was  decided  to  be  in  the  county  of  Glamorgan.  It  does  not  appear  to 
their  lordships  that  jurists  and  text-writers  are  agreed  what  are  the 
rules  as  to  dimensions  and  configuration,  which,  apart  from  other 
considerations,  would  lead  to  the  conclusion  that  a  bay  is  or  is  not  a 
part  of  the  territory  of  the  state  possessing  the  adjoining  coasts ;  and 
it  has  never,  that  they  can  find,  been  made  the  ground  of  any  judicial 
determination.  If  it  were  necessary  in  this  case  to  lay  down  a  rule 
the  difficulty  of  the  task  would  not  deter  their  lordships  from  at- 
tempting to  fulfill  it.  But  in  their  opinion  it  is  not  necessary  so  to  do. 
It  seems  to  them  that,  in  point  of  fact,  the  British  government  has 
for  a  long  period  exercised  dominion  over  this  bay,  and  that  their 
claim  has  been  acquiesced  in  by  other  nations.  *  *  *  This  would  be 
very  strong  in  the  tribunals  of  any  country  to  show  that  by  prescrip- 
tion this  bay  is  a  part  of  the  exclusive  territory  of  Great  Britain.  In 
a  British  tribunal  it  is  decisive." 

We  must  now  examine  the  local  circumstance,  the  status  of 
Chesapeake  Bay,  and  then  determine  whether  those  waters  should  be 
held  to  be  the  open  ocean  or  jurisdictional  waters  of  the  United 
States  in  the  light  of  these  authorities. 

The  headlands  are  about  twelve  miles  apart,  and  the  bay  is  probably 
nowhere  more  than  twenty  miles  in  width.  The  length  may  be  two 
hundred  miles.  To  call  it  a  bay  is  almost  a  misnomer.  It  is  more  a 
mighty  river  than  an  arm  or  inlet  of  the  ocean.  It  is  entirely  encom- 
passed about  by  oun  own  territory,  and  all  of  its  numerous  branches 
and  feeders  have  their  rise  and  their  progress  wholly  in  and  through 
our  own  soil.  It  cannot  become  an  international  commercial  highway; 
it  is  not  and  cannot  be  made  a  roadway  from  one  nation  to  another. 

The  second  charter  of  King  James  I.  to  the  Virginia  Company  in 
the  year  1609  granted :  "  All  those  lands,  countries,  and  territories 
situate,  lying  and  being  in  that  part  of  America,  called  Virginia,  from 
the  point  of  land  called  Cape  or  Point  Comfort,  all  along  the  seacoasts 
to  the  northward,  two  hundred  miles,  and  all  along  the  seacoasts  to 
the  southward,  two  hundred  miles,  and  all  that  space  and  circuit  of 
land  lying  from  the  seacoast  of  the  precinct  aforesaid  up  into  the 
land  throughout  from  sea  to  sea,  west  and  northwest,  together  with  all 
the  soils,  grounds,  havens,  ports,   *  *  *  rivers,  waters,  fishings,"  &c. 


CHAP.  I.]  THE   ALLEGANEAN.  149 

This  language  would  seem  to  place  Chesapeake  Bay  within  the 
boundai-y  lines  of  Virginia.  A  line  running  north  (as  near  as  may  be) 
from  Point  Comfort  along  the  seacoast  crosses  the  mouth  of  the  bay 
from  Cape  Henry  to  Cape  Charles. 

By  the  King  James  charter  to  Lord  Baltimore,  in  1632,  creating  the 
territory  of  Maryland,  the  southern  boundary  line  is  made  to  cross 
Chesapeake  Bay  from  Smith's  Point,  at  the  mouth  of  the  Potomac 
River,  to  Watkins'  Point,  on  the  eastern  shore,  which  apparently  places 
a  portion  of  this  bay  within  the  territory  of  Maryland.  Had  this  not 
been  intended  the  boundary  would  presumably  have  followed  the  shore 
line  around  the  bay. 

It  is  a  part  of  the  common  history  of  the  countsy  that  the  States  of 
Virginia  and  jNl'aryland  have  from  their  earliest  territorial  existence 
claimed  jurisdiction  over  these  waters,  and  it  is  of  general  knowledge 
that  they  still  continue  so  to  do. 

The  legislation  of  Congress  has  assumed  Chesapeake  Bay  to  be 
within  the  territorial  limits  of  the  United  States.  The  acts  of  July 
31,  1789,  ch.  5 ;  August  4,  1790,  ch.  35 ;  and  March  2,  1799,  ch.  128, 
§  11,  establishing  revenue  districts,  provided  that  "  the  authority  of 
the  officers  of  the  district  (Norfolk  to  Portsmouth)  shall  extend  over  all 
the  waters,  shores,  bays,  harbors,  and  inlets  comprehended  within  a  line 
drawn  from  Cape  Henry  to  the  mouth  of  James  River."  By  section 
549,  Rev.  Stat.  U.  S.,  the  eastern  judicial  district  of  Virginia  embraces 
the  "residue  of  the  State,"  not  included  in  the  western  district.  The 
boundaries  of  the  State  include  all  of  Chesapeake  Bay  south  of  a 
line  running  from  Smith's  Point  to  Watkins'  Point,  and  hence  the 
eastern  district  must  embrace  so  much  of  the  bay. 

The  position  taken  by  this  Government  and  by  England  and  France  in 
the  matter  of  the  British  brig  Grange,  captured  in  Delaware  Bay  in  1793 
by  the  French  vessel  [privateer]  V Emhuscade  (1  Am.  State  Papers, 
147,  149),  has,  it  seems  to  us,  an  important  bearing  upon  the  question 
under  discussion.  The  brig  was  seized  and  the  crew  made  prisoners, 
the  two  foreign  governments  being  at  war.  The  British  government 
must  have  demanded  that  the  United  States  compel  France  to  release 
the  captured  vessel  on  the  ground  that  the  seizure  was  unlawful  as 
having  been  made  in  our  territorial  and  neutral  waters.  The  State 
Papers  do  not  show  this  demand,  but  it  is  not  material.  The  opinion 
of  the  Attorney-General  was  asked,  and  was  given  somewhat  elabo- 
rately by  Mr.  Randolph.  1  Op.  Att'ys  Gen'l.  32.  It  quotes  the  text- 
writers,  and  concludes  that  the  whole  of  Delaware  Bay  is  within  the 
territorial  jurisdiction  of  the  United  States,  regardless  of  the  marine 
league  or  cannon-shot  limit  from  the  shore.  The  learned  Attorney- 
General  says :  "  In  like  manner  is  excluded  every  consideration  of  how 


150  STATES.  [part  I. 

far  the  spot  of  seizure  was  capable  of  being  defended  by  the  United 
States ;  for  although  it  will  not  be  conceded  that  this  could  not  be 
done,  yet  will  it  rather  appear  that  the  mutual  rights  of  the  States 
of  New  J'ersey  and  Delaware  up  to  the  middle  of  the  river  supersede 
the  necessity  of  such  au  investigation.  No.  The  corner-stone  of 
our  claim  is  that  the  United  States  are  proprietors  of  the  lands  on 
both  sides  of  the  Delaware  from  its  head  to  its  entrance  into  the 
sea." 

Acting  upon  the  opinion  of  the  Attorney-General,  the  Secretary  of 
State,  Mr,  Jefferson,  demanded  that  France  should  make  restitution  of 
the  Grange,  and  set  the  prisoners  taken  upon  her  at  liberty,  which 
demand  was  promptly  and  cheerfully  complied  with  by  the  French 
government. 

If  it  be  said  that  the  mere  claims  of  a  nation  to  jurisdiction  over 
adjacent  waters  are  to  be  accepted  with  some  degi-ee  of  hesitation, 
then  the  action  in  reference  to  the  Grange  is  of  much  weight,  for 
there  the  claim  made  by  the  United  States  was  promptly  acquiesced  in 
by  two  great  foreign  powers,  when  passions  were  excited,  and  when 
such  acquiescence  was  greatly  against  the  immediate  interest  of  one  of 
the  combatants,  as  well  as  against  the  general  interest  of  both. 

It  will  hardly  be  said  that  Delaware  Bay  is  any  the  less  an  inland 
sea  than  Chesapeake  Bay.  Its  configuration  is  not  such  as  to  make  it 
so,  and  the  distance  from  Cape  May  to  Cape  Henlopeu  is  apparently  as 
great  as  that  between  Cape  Henry  and  Cape  Charles. 

Reflection  upon  the  subject  has  caused  the  court  to  consider  this 
question  of  very  considerable  national  importance.  Contingencies 
might  arise  which  would  make  it  of  very  grave  import.  The  "  high 
sea"  belongs  to  all  alike.  It  is  the  great  highway  of  nations.  One 
cannot  lawfully  do  anything  upon  it  which  any  other  has  not  the  right 
to  do.  One  cannot  exercise  sovereignty  over  it.  Can  an  American 
court  concede  as  much  as  to  Chesapeake  Bay  ?  Other  nations,  by  com- 
mon consent  of  all,  have  well-recognized  peaceable  rights  even  in  our 
territorial  waters.  Ought  we  to  admit  that  they  have  any  rights  hos- 
tile to  the  United  States,  or  can  we  permit  belligerent  operations  be- 
tween foreign  nations  within  the  shores  of  this  bay  ?  What  injustice 
can  be  done  to  any  other  nation  by  the  United  States  exercising  sover- 
eign control  over  these  waters  ?  What  annoyance  and  what  injury  may 
not  come  to  the  United  States  through  a  failure  to  do  so  ? 

Considering  therefore  the  importance  of  the  question,  the  configura- 
tion of  Chesapeake  Bay,  the  fact  that  its  headlands  are  well  marked, 
and  but  twelve  miles  apart ;  that  it  and  its  tributaries  are  wholly 
within  our  own  territory ;  that  the  boundary  lines  of  adjacent  States 
encompass  it ;  that  from  the  earliest   history  of  the   country  it  has 


CHAP.  l]  THE    ALLEGANEAN.  151 

been  claimed  to  be  territorial  waters,  and  that  the  claim  has  never  been 
questioned  ;  that  it  cannot  become  the  pathway  from  one  nation  to 
another,  and  remembering  the  doctrines  of  the  recognized  authorities 
upon  international  law,  as  well  as  the  holdings  of  the  English  courts 
as  to  the  Bristol  Channel  and  Conception  Bay,  and  bearing  in  mind  tlie 
matter  of  the  brig  Gramje  and  the  position  taken  by  tlie  Government 
as  to  Delaware  Bay,  we  are  forced  to  the  conclusion  that  Chesapeake 
Bay  must  be  held  to  be  wholly  within  the  territorial  jurisdiction  and 
authority  of  the  Government  of  the  United  States,  and  no  part  of  the 
"high  seas  "  within  the  meaning  of  the  term  as  used  in  section  5  of 
the  act  of  June  5,  1872.  Having  arrived  at  the  foregoing  conclusion 
it  is  perhaps  unnecessary  to  consider  the  second  objection  to  a  recov- 
ery raised  by  the  Government  counsel,  viz.,  that  the  damage  was  not 
done  by  a  "  Confederate  cruiser."  But  as  the  claim  is  important,  and 
as  the  action  of  the  court  is  final,  it  is  deemed  best  that  our  determi- 
nation of  it  should  not  rest  wholly  upon  our  conclusions  as  to  a  single 
complicated  law  question,  and  the  more  so  since  we  entertain  very  de- 
cided convictions  that  under  previous  decisions  the  second  objection 
is  an  insuperable  obstacle  to  recovery  by  the  claimant. 

The  meaning  of  the  term  "Confederate  crusier"  was  defined  by  this 
court  in  the  case  of  \X\^  RoanoTxe  (^Warren  ^.  United  States),  French, 
J.,  delivering  the  opinion  in  these  words  :  "  We  can  reach  no  other 
conclusion  than  that  the  phrase  '  Confederate  cruiser,'  as  found  in  the 
act  of  1882,  was  intended  by  Congress  to  include  only  armed  vessels, 
public  or  private,  fitted  for  hostile  operations  upon  the  high  seas,  and 
acting  under  the  authority  of  the  Confederate  government.'' 

In  the  case  of  the  Lenox  {Lindseij  v.  United  States),  Harlan,  J., 
delivering  the  opinion  of  the  court,  said  :  "  In  the  opinion  of  the  court 
the  mere  presence  of  armed  men  on  board  and  in  control  of  a  vessel  on 
the  high  seas  is  not  sufficient  to  establish  the  character  of  the  craft  as 
a  Confederate  cruiser  within  the  meaning  of  the  statute.  And  if  the 
vessel  used  in  effecting  this  capture  had  been  of  such  construction,  or 
so  armed  and  equipped  as  to  be  itself  an  implement  of  warfare,  on  the 
high  seas,  being  under  the  control  of  an  effective  force  of  armed  men, 
it  would  still  have  been  necessary  to  prove  by  competent  evidence  that 
the  expedition  was  at  the  time  acting  under  the  authority  of  the  Con- 
federate government  to  bring  it  within  the  requirements  of  the  statute." 
Proceeding,  the  court  said:  "But  if  it  had  been  conclusively  proved 
that  said  Duke  (The  commander  of  the  Confederate  force)  was  at  the 
time  of  the  capture  of  th'e  Lenox  an  officer  in  the  Confederate  navy, 
that  fact,  and  his  presence  in  command  of  a  ship  on  the  high  seas, 
would  not  in  the  opinion  of  the  court,  considered  in  the  light  of  all  the 
decisions  cited  on  the  trial,  raise  the  legal  presumption  that  he  was 


152  STATES.  [part  I. 

acting  under  the  authority  of  the  Confederate  government,  unless  it 
were  also  shown  that  the  ship  was  a  public  vessel  in  conunission  or  its 
tender  belonging  to  the  Confederate  government.  Even  if  found  in 
command  of  a  private  vessel  sailing  uuder  authority  of  a  letter  of 
marque,  his  authority  would  depend  on  the  letter  rather  than  his  com- 
mission as  a  naval  officer." 

From  these  decisions,  in  order  to  constitute  a  "  Confederate  cruiser  " 
there  must  have  been,  first,  an  armed  vessel,  and  second,  the  vessel 
must  have  been  a  commissioned  vessel  of  the  Confederate  navy,  or  she 
must  have  carried  letters  of  marque  from  the  Confederate  government. 
Further  than  this,  the  fact  that  the  crew  were  a  part  of  the  Confederate 
naval  forces,  and  were  acting  uuder  authority  of  the  Confederate 
government,  would  not  supply  the  absence  of  letters  of  marque. 

The  vessels  employed  in  the  destruction  of  the  AUegnnean  were 
not  armed,  they  were  not  in  commission,  and  they  had  no  letters  of 
marque.  The  official  and  authorized  character  of  the  men  could  not 
do  away  with  the  necessity  of  authority  running  to  the  vessels  them- 
selves, nor  could  the  fact  that  the  men  were  armed  supply  the  lack  of 
armament  upon  the  vessels  in  order  to  bring  them  up  to  the  character 
of  "  cruisers." 

The  learned  counsel  for  the  claimants,  with  much  earnestness  and 
ingenuity,  undertakes  to  meet  the  difficulty  upon  the  theory  that  the 
vessels  employed  were  tenders  to  the  Patrick  Htniru,  a  duly  commis- 
sioned and  armed  vessel  of  the  Confederate  nav}-,  and  argues  that  a 
cruiser  can  send  her  boats  and  men  off  to  a  distance  and  commit  depre- 
dations at  arm's  length,  and  that  the  damage  in  this  case  was  in  fact 
and  effect  done  by  the  Patrick  Henry  herself.  It  is  difficult  to  see 
how  this  view  of  the  statement  of  Wood  that  the  boats  were  tenders 
of  the  cruiser  can  be  sustained  in  the  face  of  his  testimony  that,  "  I 
went  at  once  to  jNIatthews  County,  Virginia,  near  Point  Comfort,  and 
there  found  a  suitable  boat,  fitted  her  as  a  man-of-war  launch  "  (p.  57, 
Kecord),  and  in  the  face  of  the  testimony  of  Lee  that  "  we  had  two 
small  boats  that  we  obtained  on  the  bay  shore,  with  sails  and  a  sailing 
skiff  we  captured  from  two  Union  men.  No  boats  were  brought  from 
Richmond  or  from  any  Confederate  cruiser "  (p.  20,  Record).  In 
the  opinion  of  the  court,  the  claim  that  these  boats  were  tenders 
attached  to  the  cruiser  must  fail,  and  with  it  the  suggestion  that  the 
damage  was  done  by  the  armed  vessel  tlirough  the  instrumentality  of 
boats  attached  to  her.^ 

1  "  It  maj'  truly  be  said,  in  the  words  of  Lord  Stowell,  when  a  ship  takes  by  her 
boats  or  tender,  she  does  all  she  could  have  done  if  present"  (Sir  C.  Robinson,  in  The 
Zejthr.rina,  18.30,  2  Hagg.  318,  o21).  Other  cases  involving  the  question  of  "  tenders  " 
are:   The  Odin,  1803,  4  C.  Rob.  318;  The  Charlotte,  1804,  5  C.  Rob.  280.  —  Ed. 


CHAP.  I.]  THE   ALLEGANEAN.  153 

So  fav  as  being  effective  in  this  matter,  the  Henry  might  as  well  have 
been  in  the  Arctic  Ocean  as  over  in  the  James  River.  Any  other  body 
of  men  to  the  same  nnmber  might  have  done  the  same  work.  The  force 
making  the  capture  in  this  case  received  no  support  or  assistance  from 
any  armed  or  credentialed  war  vessel.  The  difficulty  which,  it  seems  to 
the  court,  places  the  case  outside  of  the  provisions  of  the  statute,  is  that 
the  damage  was  done  by  the  men  alone,  and  not  by  a  vessel,  when  the 
act  contemplates  only  damages  wrought  by  an  authorized  vessel  fitted 
for  belligerent  operations  upon  the  high  seas. 

The  large  amount  of  damages  believed  to  have  been  suffered  by  the 
claimants,  the  conviction  that  the  claim  has  much  merit  in  it,  the  ad- 
mirable manner  in  which  it  was  presented,  and  the  fact  that  the  finding  of 
the  court  is  final,  have  combined  to  secure  for  this  case  much  and  most 
painstaking  consideration.  After  such  consideration  the  conclusion  is 
irresistible  that  however  meritorious  it  may  be  in  itself,  it  is  not  such 
a  claim  as  Congress  intended  to  make  provision  for  in  enacting  the 
statutes  under  which  we  are  proceeding. 

Judgment  will  be  entered  for  the  United  States. 

All  concur.^ 

1  The  latter  part  of  this  opinion  should  be  considered  in  connection  with  Part  II. 
chapter  2. 

The  Bay  of  Fundy  is  considered,  on  the  contrary,  an  open  arm  of  tlie  sea.  {The 
Scliooner  Wasliimjton,  per  Bates,  Umpire,  in  Report  of  the  Commission  of  Claims,  18G3, 
p.  170). 

Ill  the  case  of  Dunham  v.  Ldiiijihere,  185-5,  3  Gray,  268,  before  the  Supreme  Court 
of  Massachusetts,  Shaw,  C.  J.,  said  :  "  We  suppose  the  rule  to  be  that  tiiose  limits 
extend  a  marine  league,  or  three  geographical  miles,  from  the  shore  ;  and  in  ascertain- 
ing tiie  line  of  shore  this  limit  does  not  follow  each  narrow  inlet  or  arm  of  tlie  sea, 
but  when  the  inlet  is  so  narrow  that  persons  and  objects  can  be  discerned  across  it 
by  tlie  naked  eye,  the  line  of  territorial  jurisdiction  stretches  across  from  one  headland 
to  the  other  of  such  inlet." 

In  Mahler  v.  Transportation  Co.,  1866,  35  N.  Y.  352,  Long  Island  Sound  was 
held  to  be  part  of  New  York  State  and  subject  to  its  jurisdiction. 

In  Manchester  v.  Massachusetts,  1890,  IS'J  U.  S.  240,  tiie  court  held,  after  an 
elaborate  survey  of  English  and  American  autiiorities,  that  the  jurisdiction  of  ^lassa- 
chusetts  included  the  marine  belt  surrounding  it ;  that  Buzzard's  Bay,  falling  within 
the  principle  of  Dunham  v.  Lamphere,  should  be  and  is  governed  by  it,  therel)y  malting 
Buzzard's  Bay  for  jurisdictional  purposes  part  of  Massachusetts;  that  such  bay,  being 
within  Massachusetts,  that  Commonwealth  rightfully  exercises  all  rights  of  ownersiiip 
and  possession,  including  fisliiiig  riglits  and  privileges,  therein  ;  that  in  the  absence  of 
affirmative  legislation  on  the  part  of  Congress,  vesting  the  regulation  of  fishing  in  such 
bays.  State  regulations,  as  in  cases  of  pilot  legislation,  must  remain  with  the  State. 
Su'jh  bays  therefore  are  not  high  seas  in  the  sense  of  international  law,  and  the  appor- 
tionment of  jurisdiction  over  such  bodies  of  water  between  the  respective  States  and 
the  United  States  is  a  matter  of  municipal,  not  of  international,  law. 

Shively  V.  Bowlby,  1893,  152  U.  S.  1,  is  a  remarkable  case, —  unfortunately  too  long 
to  print,  —  in  which  the  origin,  nature  and  extent  of  jurisdiction  of  the  United  States 


154  STATES.  [part  I. 

(d)    Margiiial  Seas. 

THE   QUEEN   v.  KEYN. 

Court  of  Crown  Cases  Reserved,  1876. 

(Law  Reports,  2  Exchequer  Dii-ision,  63.) 

The  prisoner  was  indicted  at  the  Central  Criminal  Court  for  the 
manslaughter  of  Jessie  Dorcas  Young  on  the  high  seas,  and  within 
the  jurisdiction  of  the  Admiralty  of  England.  The  deceased  was  a 
passenger  on  board  the  Strathcli/de,  a  British  steamer  bound  from 
London  to  Bombay.  This  vessel,  when  one  and  nine-tenths  of  a 
mile  from  Dover  pier-head,  and  within  two  and  a  half  miles  from 
Dover  beach,  was  run  down  and  sunk  by  the  Franconia,  a  German 
steamer.  In  the  collision,  the  deceased  woman  was  drowned,  and 
the  prisoner,  the  captain  of  the  Franconia,  is  convicted  of  man- 
slaughter ;  but  a  question  of  law  is  reserved. 

An  objection  was  taken  on  the  part  of  the  prisoner  that,  inasmuch 
as  he  was  a  foreigner,  in  a  foreign  vessel,  on  a  foreign  voyage,  sail- 
ing upon  the  high  seas,  he  was  not  subject  to  the  jurisdiction  of  any 
court  in  this  country. 

The  Crown  contends  that  inasmuch  as,  at  the  time  of  the  collision, 
both  vessels  were  within  the  distance  of  three  miles  from  the 
English  shore,  the  offense  was  committed  within  the  realm  of  Eng- 
land, and  is  triable  by  the  English  court. 

The  case  was  argued  before  Cockburn,  C.  J.,  Lord  Coleridge,  C.  J., 
Kelly,  C.  B.,  Sir  R.  Phillimore,  Bramwell,  Pollock,  and  Amphlett, 
B.  B.,  Lush,  Brett,  Grove,  Denman,  Archibald,^  Field  and  Lindley,  JJ. 

CocKBURN",  C.  J ; —  "  The  question  is,  whether  the  accused  is 
amenable  to  our  law,  and  whether  there  was  jurisdiction  to  try  him  ? 

"  The  legality  of  the  conviction  is  contested,  on  the  ground  that 
the  accused  is  a  foreigner ;  that  the  Fra:icoma,  the  ship  he  com- 
manded, was  a  foreign  vessel,  sailing  from  a  foreign  port,  bound  on 
a  foreign  voyage ;  that  the  alleged  offense  was  committed  on  the 
high  seas.  Under  these  circumstances,  it  is  contended  that  the 
accused,  though  he  may  be  amenable  to  the  law  of  his  own  country, 
is  not  capable  of  being  tried  and  punished  by  the  law  of  England. 

"  The  facts   on  which  this  defense  is  based  are  not  capable  of 

and  l!ie  States  over  navigable  waters  are  carefully  and  exhaustively  discussed.     As  it  is 
in  larjie  part  a  digest-case,  no  short  note  of  it  can  well  be  given.  —  Ed. 
1  Archibald,  J.,  died  after  the  argument  and  before  the  judgment  was  delivered. 


CHAP.  I.]  THE  QUEEN  V.    KEYN.  155 

being  disputed ;  but  a  twofold  answer  is  given  on  tlie  part  of  the 
prosecution: — 1st.  That,  althougli  tlie  occurrence  on  wliich  the 
cliarge  is  founded  took  place  on  the  high  seas  in  this  sense  that  tlu 
place  in  which  it  happened  was  not  within  the  body  of  a  county,  it 
occurred  within  three  miles  of  the  English  coast ;  that  by  the  law  of 
nations,  the  sea,  for  a  space  of  three  miles  from  the  coast,  is  part 
of  the  territory  of  the  country  to  which  the  coast  belongs ;  that, 
consequentl}'",  the  J^ranconia,  at  the  time  the  offense  was  committed, 
was  in  English  waters,  and  those  on  board  were  therefore  subject 
to  English  law. 

"  Secondly.  That,  although  the  negligence  of  which  the  accused  was 
guilty  occurred  on  board  a  foreign  vessel,  the  death  occasioned  by 
such  negligence  took  place  on  board  a  British  vessel ;  and  that,  as 
a  British  vessel  is,  in  point  of  law  to  be  considered  British  territory, 
the  offense,  having  been  consummated  by  the  death  of  the  deceased 
in  a  British  ship,  must  be  considered  as  having  been  committed  on 
British  territory.  *  *  * 

"  According  to  the  general  law,  a  foreigner  who  is  not  resid- 
ing permanently  or  temporarily  in  British  territory,  or  on  board  a 
British  ship,  cannot  be  held  responsible  for  an  infraction  of  the  law 
of  this  country. 

"  Unless,  therefore,  the  accused,  Keyn,  at  the  time  the  offense  of 
which  he  has  been  convicted  was  committed,  was  on  British  territory 
or  on  board  a  British  ship,  he  could  not  be  properlj-  brought  to  trial 
under  British  law,  in  the  absence  of  express  legislation.   *  *  * 

"  In  the  reign  of  Charles  II.,  Sir  Leoline  Jenkins,  then  the 
judge  of  the  Court  of  Admiralty,  in  a  charge  to  the  grand  jury  at  an 
Admiralty  sessions  at  the  Old  Bailey,  not  only  asserted  the  king's 
sovereignty  within  the  four  seas,  and  that  it  was  his  right  and 
province  '  to  keep  the  public  peace  on  these  seas ' — that  is,  as  Sir 
Leoline  expounds  it,  '  to  preserve  his  subjects  and  allies  in  their 
possessions  and  properties  upon  these  seas,  and  in  all  freedom  and 
security  to  pass  to  and  fro  on  them,  upon  their  lawful  occasions,' 
but  extended  this  authority  and  jurisdiction  of  the  King.  '  To  pre- 
serve the  public  peace  and  to  maintain  the  freedom  and  security 
of  navigation  all  the  world  over ;  so  that  not  the  utmost  bound  of 
the  Atlantic  Ocean,  nor  any  corner  of  the  Mediterranean,  nor  any 
part  of  the  South  or  other  seas,  but  that  if  the  peace  of  God  and 
the  King  be  violated  upon  any  of  his  subjects,  or  upon  his  allies 
or  their  subjects,  and  the  offender  be  afterwards  brought  up  or 
laid  hold  of  in  any  of  His  Majesty's  ports,  such  breach  of  the  peace 
is  to  be  inquired  of  and  tried  in  virtue  of  a  commission  of  oyer  and 
terminer  as  this  is,  in  such  county,  liberty,  or  place  as  His  Majesty 


156  STATES.  [part  I. 

shall  please  to  direct — so  long  an  arm  hath  God  by  the  laws  given  to 
his  vicegerent  the  King.'  *  *  * 

"  Venice,  in  like  manner,  laid  claim  to  the  Adriatic,  Genoa  to  the 
Ligurian  Sea,  Denmark  to  a  portion  of  the  North  Sea. 

"  The  Portuguese  claimed  to  bar  the  ocean  route  to  India  and  the 
Indian  Seas  to  the  rest  of  the  world,  while  Spain  made  the  like 
assertion  with  reference  to  the  "West. 

"  All  these  vain  and  extravagant  pretensions  have  long  since  given 
way  to  the  influence  of  reason  and  common  sense. 

"  If,  indeed,  the  sovereignty  thus  asserted  had  a  real  existence, 
and  could  now  be  maintained,  it  would  of  course,  independently  of 
any  question  as  to  the  three-mile  zone,  be  conclusive  of  the  present  case. 
But  the  claim  to  such  sovereignty,  at  all  times  unfounded,  has  long 
since  been  abandoned.  Xo  one  would  now  dream  of  asserting  that 
the  sovereign  of  these  realms  has  any  greater  right  over  the  surround- 
ing seas  than  the  sovereigns  on  the  opposite  shores  ;  or  that  it  is  the 
especial  duty  and  privilege  of  the  Queen  of  Great  Britain  to  keep  the 
peace  in  these  seas;  or  that  the  Court  of  Admiralty  could  try  a 
foreigner  for  an  offense  committed  in  a  foreign  vessel  in  all  parts  of 
the  Channel. 

"  Xo  writer  of  our  day,  except  Mr.  Chitty  in  his  treatise  on  the 
prerogative,  has  asserted  the  ancient  doctrine.  Blackstone,  in  his 
chapter  on  the  prerogative  in  the  Commentaries,  while  he  asserts 
that  the  narrow  seas  are  part  of  the  realm,  puts  it  only  on  the  ground 
that  the  jurisdiction  of  the  Admiralty  extends  over  these  seas. 

"  He  is  silent  as  to  any  jurisdiction  over  foreigners  within  them. 
The  concensus  of  jurists,  which  has  been  so  much  insisted  on  as 
authority,  is  perfectly  unanimous  as  to  the  non-existence  of  any  such 
jurisdiction.  Indeed,  it  is  because  this  claim  of  sovereignty  is 
admitted  to  be  untenable  that  it  has  been  found  necessary  to  resort 
to  the  theory  of  the  three-mile  zone. 

"  It  is  in  vain,  therefore,  that  the  ancient  assertion  of  sovereignty 
over  the  narrow  seas  is  invoked  to  give  countenance  to  the  rule 
now  sought  to  be  established,  of  jurisdiction  over  the  three-mile 
zone. 

"  If  this  rule  is  to  prevail,  it  must  be  on  altogether  different  grounds. 
To  invoke,  as  its  foundation  or  in  its  support,  an  assertion  of  sover- 
eignty which,  for  all  practical  purposes,  is,  and  always  has  been,  idle 
and  unfounded,  and  the  invalidity  of  which  renders  it  necessary  to 
have  recourse  to  the  new  doctrine,  involves  an  inconsistency,  on 
which  it  would  be  superfluous  to  dwell.  I  must  confess  myself 
unable  to  comprehend  how,  when  the  ancient  doctrine  as  to  sover- 
eignty over  the  narrow  seas  is  adduced,  its  operation  can  be  confined 


CHAP.  T.]  THE  QUEEN  V.    KEYN.  157 

to  the  three-mile  zone.  If  the  argument  is  good  for  anj^thing,  it 
must  apply  to  the  whole  of  the  surrounding  seas.  But  the  counsel 
for  the  Crown  evidently  shrank  from  applying  it  to  this  extent. 
Such  a  pretension  would  not  be  admitted  or  endured  by  foreign 
nations.  That  it  is  out  of  this  extravagant  assertion  of  sover- 
eignty that  the  doctrine  of  the  three-mile  jurisdiction,  asserted  on 
the  part  of  the  Crown,  and  Avhich,  the  older  claim  being  necessarily 
abandoned,  we  are  now  called  upon  to  consider,  has  sprung  up,  I 
readily  admit.  *  *  * 

"  With  the  celebrated  work  of  Grotius,  published  in  1609,  began 
the  great  contest  of  the  jurists  as  to  the  freedom  of  the  seas. 
"  The  controversy  ended,  as  controversies  often  do,  in  a  species  of 
compromise.  While  maintaining  the  freedom  of  the  seas,  Grotius, 
in  his  work  De  Jure  Belli  et  Pads,  had  expressed  an  opinion  that, 
while  no  right  could  be  acquired  to  the  exclusive  possession  of  the 
ocean,  an  exclusive  right  or  jurisdiction  might  be  acquired  in  respect 
of  particular  portions  of  the  sea  adjoining  the  territory  of  indi- 
vidual states.  *  *  * 

"Other  w^riters  adopted  a  similar  principle,  but  with  very  varying 
views  as  to  the  extent  to  which  the  right  might  be  exercised.  Alberi- 
cus  Gentiles  extended  it  to  100  miles;  Baldus  and  Bodinus  to  sixty. 

"  Loccenius  {De  Jure  3IarUinio,  ch.  iv.,  s.  6)  puts  it  at  two  days'  sail ; 
another  writer  makes  it  extend  as  far  as  could  be  seen  from  the 
shore.  Yalin,  in  his  Commentary  on  the  French  Ordinances  of 
1681  (ch.  v.),  w"ould  have  it  reach  as  far  as  bottom  could  be  found 
with  the  lead  line.  *  *  * 

"Differing  altogether  from  these  writers  as  to  the  extent  of 
maritime  sovereignty,  Bynkershoek,  an  advocate,  like  Grotius,  for 
the  mare  libera m,  and  who  entered  the  lists  against  Selden  as  to  the 
dominion  of  England  in  the  so-called  English  Sea,  in  his  treatise  Be 
Bominio  Maris,  published  in  1702,  follows  up  the  idea  of  Grotius  as 
to  a  limited  dominion  of  the  sea  from  the  shore.  *  *  * 

"  After  combating  the  doctrine  of  a  mare  clausion  as  regards 
the  sea  at  large,  and  enumerating  these  inconsistent  opmions,  which 
he  seems  little  disposed  to  respect,  Bynkershoek  continues  :  '  Hinc 
videas  priscos  juris  magistros,  qui  dominium  in  mare  proximum 
ausi  sunt  agnoscere,  in  regundis  ejus  flnibus  admodum  vagari  incer- 
tos.'  '  Quare  omnino  videtur  rectius,'  he  adds,  after  disposing  of 
the  foregoing  opinions,  '  Eo  potestatem  terrse  extendi,  quo- 
usque  tormenta  exploduntur;  eatenus  quippe,  cum  imperare,  tum 
possidere  videmur.  Loquor  autem  de  his  temporibus ;  quibus  illis 
machinis  utimur ;  alioquin  generaliter  decendum  esset,  potestatem 
terrse  finiri,  ubi  finitur  armorum  vis  ;  etenim  haec,  ut  diximus,  pos- 
sessionem tuetur.' 


158  STATES.  [part    I. 

"  We  have  here,  for  the  first  time,  so  far  as  I  am  aware,  a  sugges- 
tion as  to  a  territorial  dominion  over  the  sea,  extending  as  far  as 
cannon-shot  would  reach — a  distance  which  succeeding  writers  fixed 
at  a  marme  league,  or  three  miles.  Prior  to  this,  no  one  had  suggested 
such  a  limit. 

"  The  jurisdiction,  assumed  in  the  Admiralty  commissions,  or 
exercised  by  the  Court  of  King's  Bench  in  the  time  of  the  Edwards, 
was  founded  on  the  King's  alleged  sovereignty  over  the  whole  of  the 
narrow  seas  ;  it  had  no  reference  whatever  to  any  notion  of  a  terri- 
torial sea.  To  English  lawyers  the  idea  of  this  limited  jurisdiction 
was  utterly  unknown. 

"  With  Selden  and  Hale,  tliey  stood  up  stoutly  for  the  King's 
undivided  dominion  over  the  four  seas.  Xo  English  author  makes 
any  distinction,  as  regards  the  dominion  of  the  Crown,  between 
the  narrow  seas  as  a  whole  and  any  portion  of  them  as  adjacent 
to  the  shore.  The  doctrine  was  equally  unknown  to  the  Scotch 
lawyers.  *  *  * 

"  Even  to  our  times  the  doctrine  of  the  three-mile  zone  has 
never  been  adopted  by  the  writers  on  English  law.  To  Blackstone 
who,  in  his  Commentaries,  treats  of  the  sea  with  reference  to  the 
prerogative,  as  also  to  his  modern  editor,  ]Mr.  Stephen,  it  is  unknown ; 
equally  so  to  Mr.  Chitty,  whose  work  on  the  j)rerogative  is  of  the 
present  century.  It  was  not  till  the  beginning  of  this  century  that 
any  mention  of  such  a  doctrine  occurs  in  the  courts  of  this  country. 
But  to  the  continental  jurists,  the  suggestion  of  Bynkershoek  seemed 
a  happy  solution  of  the  great  controversy  as  to  the  freedom  of  the 
sea;  and  the  iovninla,  pofesfas  ^fnitur  ^dn  fnitur  armorwn  vis,  was 
a  taking  one  ;  and  succeeding  publicists  adopted  and  repeated  the 
rule  which  their  predecessor  had  laid  down,  without  much  troubling 
themselves  to  ascertain  or  inquire  whether  that  rule  had  been  rec- 
ognized and  adopted  by  the  maritime  nations  who  were  to  be 
affected  by  it.  *  *  * 

"  But  to  what,  after  all,  do  these  ancient  authorities  amount  ? 
Of  what  avail  are  they  towards  establishing  that  the  soil  in  the  three- 
mile  zone  is  part  of  the  territorial  domain  of  the  Crown  ?  These 
assertions  of  sovereignty  were  manifestl}'^  based  on  the  doctrine  that 
the  narrow  seas  are  part  of  the  realm  of  England.  But  that  doctrine 
is  now  exploded.  Who  at  this  day  would  venture  to  affirm  that  the 
sovereignty  thus  assei-ted  in  those  times  now  exists  ?  What  Eng- 
lish laAvyer  is  there  who  would  not  shrink  from  maintaining — what 
foreign  jurist  who  would  not  deny — what  foreign  government  which 
would  not  repel  such  a  pretension?  I  listened  carefully  to  see 
whether  such  an  assertion  would  be  made ;  but  none  was  made. 


CHAP.  I.]  THE   QUEEN   V.    KEYK  159 

Xo  one  has  gone  the  length  of  suggesting,  much  less  of  openly  as- 
serthig,  that  the  jurisdiction  still  exists.  It  seems  to  me,  that  when 
the  sovereignty  and  jurisdiction  from  which  the  property  in  the  soil 
of  the  sea  was  inferred  is  gone,  the  territorial  property  which  was  sug- 
gested to  be  consequent  upon  it,  must  necessarily  go  with  it.    *  *  * 

"It  thus  appearing,  as  it  seems  to  me  that  the  littoral  sea 
beyond  low-water  mark  did  not,  as  distinguished  from  the  rest  of 
the  high  seas,  originally  form  part  of  the  territory  of  the  realm,  the 
question  again  presents  itself,  when  and  how  did  it  become  so  ?  Can 
a  portion  of  that  which  was  before  high  sea  have  been  converted 
into  British  territory,  without  any  action  on  the  part  of  the  British 
government  or  legislature — by  the  mere  assertions  of  writers  on 
public  law — or  even  by  the  assent  of  other  nations  ? 

"  And  when  in  support  of  this  position,  or  of  the  theory  of  the 
three-mile  zone  in  general,  the  statements  of  the  writers  on  inter- 
national law  are  relied  on,  the  question  may  well  be  asked,  upon 
what  authority  are  these  statements  founded  ? 

"  When  and  in  what  manner  have  the  nations,  who  are  to  be  af- 
fected by  such  a  rule  as  these  writers,  following  one  another,  have 
laid  down,  signified  their  assent  to  it  ?  to  say  nothing  of  the  diflficulty 
which  might  be  found  in  saying  to  which  of  these  conflicting  opin- 
ions such  assent  had  been  given. 

"  For,  even  if  entire  unanimity  had  existed  in  respect  of  the  im- 
portant particulars  to  which  I  have  referred,  in  place  of  so  much  dis- 
crepancy of  opinion,  the  question  would  still  remain,  how  far  the 
law  as  stated  by  the  publicists  had  received  the  assent  of  the  civ- 
ilized nations  of  the  world. 

"  For  writers  on  international  law,  however  valuable  their  labors 
may  be  in  elucidating  and  ascertaining  the  principles  and  rules  of 
law,  cannot  make  the  law.  To  be  binding,  the  law  must  have  received 
the  assent  of  the  nations  who  are  to  be  bound  by  it.  This  assent  may 
be  express,  as  by  treaty  or  the  acknowledged  concurrence  of  govern- 
ments, or  may  be  implied  from  established  usage, — an  instance  of 
which  is  to  be  found  in  the  fact  that  merchant  vessels  on  the  high 
seas  are  held  to  be  subject  only  to  the  law  of  the  nation  under  whose 
flag  they  sail,  while  in  the  ports  of  a  foreign  state  they  are  subject 
to  the  local  law  as  well  as  to  that  of  their  own  country.  In  the 
absence  of  proof  of  assent,  as  derived  from  one  or  other  of  these 
sources,  no  unanimity  on  the  part  of  theoretical  writers  would  war- 
rant the  judicial  application  of  the  law  on  the  sole  authority  of 
their  views  or  statements.  Nor,  in  my  opinion,  would  the  clearest 
proof  of  unanimous  assent  on  the  part  of  other  nations  be  sufficient 
to  authorize  the  tribunals  of  this  country  to  apply,  without  an  Act 


160  STATES.  [part  I. 

of  Parliament,  what  would  practically  amount  to  a  new  law.  In 
so  doing  we  should  be  unjustifiably  usurping-  the  province  of  the 
legislature.  The  assent  of  nations  is  doubtless  sufficient  to  give 
the  power  of  parliamentary  legislation  in  a  matter  otherwise  within 
the  sphere  of  international  law,  but  it  would  be  powerless  to  confer 
without  such  legislation  a  jurisdiction  beyond  and  unknown  to  the 
law,  such  as  that  now  insisted  on,  a  jurisdiction  over  foreigners  in 
foreign  ships  on  a  portion  of  the  high  seas. 

"  When  I  am  told  that  all  other  nations  have  assented  to  such 
an  absolute  dominion  on  the  part  of  the  littoral  state,  over  this  por- 
tion of  the  sea,  as  that  their  ships  may  be  excluded  from  it,  and 
that,  without  any  open  legislation,  or  notice  to  them  or  their  sub- 
jects, the  latter  may  be  held  liable  to  the  local  law,  I  ask  first  what 
proof  there  is  of  such  assent  as  here  asserted ;  and,  secondly,  to 
what  extent  has  such  assent  been  carried  ;  a  question  of  infinite  im- 
portance, when  undirected  by  legislation,  we  are  called  upon  to  apply 
the  law  on  the  strength  of  such  assent.  It  is  said  that  we  are  to 
take  the  statements  of  the  publicists  as  conclusive  proof  of  the  as- 
sent in  question,  and  much  has  been  said  to  impress  on  us  the  re- 
spect which  is  due  to  their  authority,  and  that  they  are  to  be  looked 
upon  as  witnesses  of  the  facts  to  which  they  speak,  witnesses  whose 
statements,  or  the  foundation  on  which  those  statements  rest,  we 
are  scarcely  at  liberty  to  question.  I  demur  altogether  to  this 
position.  I  entertain  a  profound  respect  for  the  opinion  of  jurists 
when  dealing  with  the  matters  of  judicial  principle  and  opinion, 
but  we  are  here  dealing  with  a  question  not  of  opinion  but  of  fact, 
and  I  must  assert  my  entire  liberty  to  examine  the  evidence  and 
see  upon  what  foundation  these  statements  are  based. 

"The  question  is  not  one  of  theoretical  opinion,  but  of  fact,  and, 
fortunately,  the  writers  upon  whose  statements  we  are  called  upon 
to  act  have  afforded  us  the  means  of  testing  those  statements  by 
reference  to  facts.  They  refer  us  to  two  things,  and  tj  these  alone — 
treaties  and  usage. 

"  Let  us  look  a  little  more  closely  into  both. 

"  First,  then,  let  us  see  how  the  matter  stands,  as  regards  treaties. 
It  may  be  asserted,  without  fear  of  contradiction,  that  the  rule  that 
the  sea  surrounding  the  coast  is  to  be  treated  as  a  part  of  the  ad- 
jacent territory,  so  that  the  state  shall  have  exclusive  dominion 
over  it,  and  that  the  law  of  the  latter  shall  be  generally  applicable  to 
those  passhig  over  it  in  the  ships  of  other  nations,  has  never  been 
made  the  subject  matter  of  any  treaty,  or,  as  matter  of  acknowledged 
right,  has  formed  the  basis  of  any  treaty,  or  has  ever  been  the  sub- 
ject of    diplomatic  discussion.     It  has   been   entirely  the  creation 


CHAP.  I.]  THE  QUEEN  V.    KEYN.  161 

of  the  writers  on  international  law.  It  is  true  that  the  writers  who 
have  been  cited,  constantly  refer  to  treaties  in  support  of  the  doc- 
trine they  assert.  But  when  the  treaties  they  refer  to  are  looked 
at,  they  will  be  foimd  to  relate  to  two  subjects  only — the  observance 
of  the  rights  and  obligations  of  neutrality,  and  the  exclusive  right 
of  fishing.  In  fixing  the  limits  to  which  these  rights  should 
extend,  nations  have  so  far  followed  the  writers  on  international 
law  as  to  adopt  the  three  miles  range  as  a  convenient  distance. 
There  are  several  treaties  by  which  nations  have  engaged,  in  the 
event  of  either  of  them  being  at  war  with  a  third,  to  treat  the  sea 
within  three  miles  of  each  other's  coasts  as  neutral  territory,  within 
which  no  warlike  operations  should  be  carried  on ;  instances  of 
which  will  be  found  in  the  various  treatises  on  international  law. 
Thus  for  instance,  in  the  treaties  of  commerce,  between  Great  Brit- 
ain and  France,  of  September,  1786;  between  France  and  Russia  of 
January,  1787 ;  between  Great  Britain  and  the  United  States,  of 
October,  1794,  each  contracting  party  engages,  if  at  war  with  any 
other  nation,  not  to  carry  on  hostilities  within  cannon  shot  of  the 
coast  of  the  other  contracting  party ;  or,  if  the  other  should  be  at 
war,  not  to  allow  its  vessels  to  be  captured  within  the  like  distance. 
There  are  many  other  treaties  of  the  like  tenor,  a  list  of  which  is 
given  by  Azuni  (vol.,  II  p.  78)  ;  and  various  ordinances  and  laws 
have  been  made  by  the  different  states  in  order  to  give  efl:ect  to 
them. 

"  Again,  nations,  possessing  opposite  or  neighboring  coasts,  border- 
ing on  a  common  sea,  have  sometimes  found  it  expedient  to  agree 
that  the  subjects  of  each  shall  exercise  an  exclusive  right  of  fishing 
to  a  given  distance  from  their  own  shores,  and  here  also  have 
accepted  the  three  miles  as  a  convenient  distance.  Such,  for  in- 
stance, are  the  treaties  made  between  this  country  and  the  United 
States,  in  relation  to  the  fishery  oft"  the  coast  of  Newfoundland,  and 
those  between  this  country  and  France,  in  relation  to  the  fishery  on 
their  respective  shores ;  and  local  laws  have  been  passed  to  give 
effect  to  these  engagements. 

"  But  in  all  these  treaties  this  distance  is  adopted,  not  as  matter 
of  existing  right  established  by  the  general  law  of  nations,  but  as 
matter  of  mutual  concession  and  convention.  Instead  of  upholding 
the  doctrine  contended  for,  the  fact  of  these  treaties  having  been 
entered  into  has  rather  the  opposite  tendency ;  for  it  is  obvious  that, 
if  the  territorial  right  of  a  nation,  bordering  on  the  sea  to  this  por- 
tion of  the  adjacent  waters  had  been  established  by  the  common 
assent  of  nations,  these  treaty  arrangements  would  have  been  wholly 

superfluous. 

11 


162  STATES.  [part  I. 

"Each  nfition  would  have  been  bound,  independently  of  treaty 
engagement,  to  respect  the  neutrality  of  the  other  in  these  waters  as 
much  as  in  its  inland  waters.  The  foreigner  invading  the  rights  of 
the  local  fisherman  would  have  been  amenable,  consistently  with 
international  law,  to  local  legislation  prohibiting  such  infringement, 
without  any  stipulation  to  that  effect  by  treaty.  For  what  object, 
then,  have  treaties  been  resorted  to  ?  Manifestl}^  in  order  to  obviate 
all  questions  as  to  concurrent  or  conflicting  rights  arising  under  the 
law  of  nations. 

"  Possibly,  after  these  precedents  and  all  that  has  been  written  on 
this  subject,  it  may  not  be  too  much  to  say  that,  indeiDcndently  of 
treaty,  the  three-mile  belt  of  sea  might  at  this  day  be  taken  as 
belonging  for  these  purposes,  to  the  local  state. 

"  But  it  is  scarcely  logical  to  infer,  from  such  treaties  alone,  that, 
because  nations  have  agreed  to  treat  the  littoral  sea  as  belonging  to 
the  country  it  adjoins,  for  certain  specified  objects,  they  have  there- 
fore assented  to  forego  all  other  rights  i^reviously  enjoyed  in  common, 
and  have  submitted  themselves,  even  to  the  extent  of  the  right  of 
navigation  on  a  portion  of  the  high  seas,  and  the  liability  of  their 
subjects  therein  to  the  criminal  law,  to  the  will  of  the  local  sovereign, 
and  the  jurisdiction  of  the  local  state.  Equally  illogical  is  it,  as  it 
seems  to  me,  from  the  adoption  of  the  three-mile  distance  in  these 
particular  instances,  to  assume,  independently  of  everything  else,  a 
recognition,  by  the  common  assent  of  nations,  of  the  principle  that 
the  subjects  of  one  state  passing  in  ships  within  three  miles  of  the 
coast  of  another,  shall  be  in  all  respects  subject  to  the  law  of  the 
latter.  It  may  be  that  the  maritime  nations  of  the  world  are  pre- 
pared to  acquiesce  in  the  appropriation  of  the  littoral  sea  ;  but  I  can- 
not think  that  these  treaties  help  us  much  towards  arriving  at  the 
conclusion  that  this  appropriation  has  actually  taken  place.  At  all 
events,  the  question  remains,  whether  judicially  we  can  infer  that 
the  nations  who  have  been  j)arties  to  these  treaties,  and,  still  further, 
those  who  have  not,  have  thereby  assented  to  the  application  of  the 
criminal  law  of  other  nations  to  their  subjects  on  the  waters  in 
question,  and  on  the  strength  of  such  inference  so  apply  the  crimi- 
nal law  of  this  country. 

"  The  uncertainty  in  which  we  are  left,  so  far  as  judicial  knowl- 
edge is  concerned,  as  to  the  extent  of  such  assent,  likewise  i:)resents, 
I  think,  a  very  serious  obstacle  to  our  assuming  the  jurisdiction  we 
are  called  upon  to  exercise,  independently  of  the,  to  my  mind,  still 
more  serious  difficulty,  that  we  should  be  assuming  it  without  legis- 
lative warrant. 

"  So  nnich  for  treaties.     Then  how  stands  the  matter  as  to  usage, 


CHAP.  I.]  THE  QUEEN  V.    KEYN.  183 

to  which  reference  is  so  frequently  made  by  the  puljlicists  in  support 
of  their  doctrine  ? 

"  When  the  matter  is  looked  into,  the  only  usage  found  to  exist 
is  such  as  is  connected  with  navigation,  or  with  revenue,  local 
fisheries,  or  neutrality,  and  it  is  to  these  alone  that  the  usage  relied 
on  is  confined.  Usage  as  to  the  application  of  the  general  law  of  the 
local  state  to  foreigners  on  the  littoral  sea,  there  is  actually  none. 
No  nation  has  arrogated  to  itself  the  right  of  excluding  foreign 
vessels  from  the  use  of  its  external  littoral  waters  for  the  purpose  of 
navigation,  or  has  assumed  the  power  of  making  foreigners  in  foreign 
ships  passing  through  these  waters  subject  to  its  law,  otherwise 
than  in  respect  of  the  matters  to  which  I  have  just  referred.  Nor 
have  the  tribunals  of  any  nation  held  foreigners  in  these  waters 
amenable  generally  to  the  local  criminal  law  in  respect  of  offenses. 
It  is  for  the  first  time  in  the  annals  of  jurisprudence  that  a  court  of 
justice  is  now  called  upon  to  apply  the  criminal  law  of  the  country 
to  such  a  case  as  the  present. 

"  It  may  well  be,  I  say  again,  that — after  all  that  has  been  said  and 
done  in  this  respect— after  the  instances  which  have  been  mentioned 
of  the  adoption  of  the  three-mile  distance,  and  the  repeated  asser- 
tion of  this  doctrine  by  the  writers  on  public  law,  a  nation  which 
sliould  now  deal  with  this  portion  of  the  sea  as  its  own,  so  as  to 
make  foreigners  within  it  subject  to  its  law,  for  the  prevention  and 
punishment  of  offenses,  would  not  be  considered  as  infringing  the 
rights  of  other  nations.  But  I  apprehend  that  as  the  ability  so  to 
deal  with  these  waters  would  result,  not  from  any  original  or 
inherent  right,  but,  from  the  acquiescence  of  other  states,  some  out- 
ward manifestation  of  the  national  will,  in  tlie  shape  of  open  prac- 
tice or  municipal  legislation,  so  as  to  amount,  at  least  constructively, 
to  an  occupation  of  that  which  was  before  unappropriated,  would  be 
necessary  to  render  tlie  foreigner,  not  previously  rauenable  to  our 
general  law,  subject  to  its  control. 

"  That  such  legislation,  whether  consistent  with  the  general  law 
of  nations  or  not,  would  be  binding  on  the  tribunals  of  this  country 
— leaving  the  question  of  its  consistency  with  international  law  to 
be  determined  between  the  governments  of  the  respective  nations — 
can  of  course  admit  of  no  doubt.  The  question  is  whether  such 
legislation  would  not,  at  all  events,  be  necessary  to  justify  our 
courts  in  applying  the  law  of  this  country  to  foreigners  under 
entirely  novel  circumstances  in  which  it  has  never  been  apphed 
before.  *  *  * 

"It  is  unnecessary  to  the  defense,  and  equally  so  to  the  de- 
cision of  the  case,  to  determine  whether  Parliament  has  the  right 


164  STATES.  [part  I. 

to  treat  the  three-mile  zone  as  part  of  the  reahn  consistently  with 
international  law. 

"  That  is  a  matter  on  ■uiiich  it  is  for  Parliament  itself  to  decide. 
It  is  enough  for  us  that  it  has,  so  far  as  to  be  binding  upon  us,  the 
power  to  do  so.  The  question  is  whether,  acting  judicially,  we  can 
treat  the  power  of  Parliament  to  legislate  as  making  up  for  the  ab- 
sence of  actual  legislation. 

"  I  am  clearly  of  opinion  that  we  cannot,  and  that  it  is  only  in  the 
instance  in  which  foreigners  on  the  sea  have  been  made  specifically 
liable  to  our  law  by  statutory  enactment  that  that  law  can  be  applied 
to  them.*  *  * 

"Hitherto,  legislation,  so  far  as  relates  to  foreigners  hi  foreign 
ships  in  this  part  of  the  sea,  has  been  confined  to  the  maintenance 
of  neutral  rights  and  obligations,  the  prevention  of  breaches  of  the 
revenue  and  fishery  laws,  and,  under  particular  circumstances,  to 
cases  of  collision. 

"  In  the  two  first  the  legislation  is  altogether  irrespective  of  the 
three-mile  distance,  being  founded  on  a  totally  different  principle, 
namely,  the  right  of  a  state  to  take  all  necessary  measures  for  the 
protection  of  its  territory  and  rights,  and  the  prevention  of  any  breach 
of  its  revenue  laws.  *  *  * 

"It  is  apparent  that,  with  the  exception  of  the  penalties  im- 
posed for  violation  of  neutral  duties  or  breaches  of  the  revenue  or 
fishery  laws,  there  has  been  no  assertion  of  legislative  authority  in 
the  general  application  of  the  penal  law  to  foreigners  within  the  three- 
mile  zone.  The  legislature  has  omitted  to  adopt  the  alleged  sover- 
eignty over  the  littoral  sea,  to  the  extent  of  making  our  penal  law 
applicable  generally  to  foreigners  passing  through  it  for  the  purpose 
of  navigation.  Can  a  court  of  justice  take  upon  itself,  in  such  a  mat- 
ter, to  do  what  the  legislature  has  not  thought  fit  to  do — that  is,  make 
the  whole  body  of  our  penal  law  applicable  to  foreign  vessels  within 
three  miles  of  our  coast  ? 

"  It  is  further  apparent  from  these  instances  of  specific  legislation 
that,  when  ascertaining  its  power  to  legislate  with  reference  to  the 
foreigner  within  the  three-mile  zone,  Parliament  has  deemed  it  neces- 
sary, wherever  it  was  thought  right  to  subject  him  to  our  law,  ex- 
pressly to  enact  that  he  should  be  so.  We  must  take  this,  I  think, 
as  an  exposition  of  the  opinion  of  Parliament  that  specific  legislation 
is  here  necessary,  and  consequently,  that  without  it  the  foreigner  in 
a  foreign  vessel  will  not  come  within  the  general  law  of  this  country 
in  respect  of  matters  arising  on  the  sea. 

"Legislation,  in  relation  to  foreign  ships  coming  into  British  ports 


CHAP.  I.]  THE  QUEEN  V.    KEYX.  105 

and  waters,  rests  on  a  totally  different  princijile,  as  was  well  explained 
by  Dr.  Lushington,  in  the  case  of  T/ie  Anxapolis} 

"  'The  Parliament  of  Great  Britain  it  is  true,'  says  Dr.  Lushington, 
'  has  not,  according  to  the  principles  of  public  law,  any  authority  to 
legislate  for  foreign  vessels  on  the  high  seas,  or  for  foreigners  out  of 
the  limits  of  British  jurisdiction  ;  though,  if  Parliament  thought  fit 
so  to  do,  this  court,  in  its  instance  jurisdiction  at  least,  would  be 
bound  to  obey.  In  cases  admitting  of  doubt,  the  presumption  would 
be  that  Parliament  intended  to  legislate  without  violating  any 
rule  of  international  law,  and  the  construction  has  been  ac- 
cordingly. 

"'Within,  however,  British  jurisdiction,  namely,  within  British 
territorj'',  and  at  sea  within  three  miles  frftm  the  coast,  and  within  all 
British  rivers  intra  fauces^  and  over  foreigners  in  British  ships,  I 
apprehend  that  the  British  Parliament  has  an  undoubted  right  to 
legislate.  I  am  further  of  opinion  that  Parliament  has  a  perfect  right 
to  say  to  foreign  ships  that  they  shall  not,  without  complying  with 
British  law,  enter  into  British  ports,  and  that  if  they  do  enter  thej'^ 
shall  be  subject  to  jjenalties,  unless  they  have  previously  complied 
with  the  requisitions  ordained  by  the  British  Parliament  whether 
those  requisitions  be,  as  in  former  times,  certificates  of  origin,  or  clear- 
ance of  any  description  from  a  foreign  port,  or  clean  bills  of  health, 
or  the  taking  on  board  a  pilot  at  any  place  in  or  out  of  British  juris- 
diction before  entering  British  waters. 

"  '  Whether  the  Parliament  has  so  legislated  is  now  the  question 
to  be  considered.'  *  *  * 

"  In  the  result,  looking  to  the  fact  that  all  pretension  to  sov- 
ereignty or  jurisdiction  over  foreign  ships  in  the  narrow  seas  has 
long  since  been  wholly  abandoned — to  the  uncertainty  which  attaches 
to  the  doctrine  of  the  publicists  as  to  the  degree  of  sovereignty  and 
jurisdiction  which  may  be  exercised  on  the  so-called  territorial  sea — 
to  the  fact  that  the  right  of  absolute  sovereignty  therein,  and  of 
penal  jurisdiction  over  the  subjects  of  other  states,  has  never  been 
expressly  asserted  or  conceded  among  independent  nations,  or,  in 
practice,  exercised,  and  acquiesced  in,  except  for  violation  of  neutral- 
ity or  breach  of  revenue  or  fishery  laws,  w^hich,  as  has  been  pointed 
out,  stand  on  a  different  footing  as  well  as  to  the  fact  that,  neither 
in  legislating  with  reference  to  shipping,  nor  in  respect  of  the  crim- 
inal law,  has  Parliament  thought  proper  to  assume  territorial  sover- 
eignty over  the  three-mile  zone,  so  as  to  enact  that  all  offenses 
committed  upon  it,  by  foreigners  in  foreign  ships,  should  be  within 
the  criminal  law  of  this  country,  but,  on  the  contrary,  wherever  it 

1  Lush.  Adm.  295. 


166  STATES.  [parti. 

was  thought  right  to  make  the  foreigner  amenable  to  our  law,  has 
done  so  by  express  and  specific  legislation.  I  cannot  think  that,  in 
the  absence  of  all  precedent,  and  of  any  judicial  decision  or  authority 
applicaljle  to  the  present  purpose,  we  should  be  justified  in  holding 
an  offense,  committed  under  such  circumstances,  to  be  punishable  by 
the  law  of  England,  especially  as  in  so  holding  we  must  declare  the 
whole  body  of  our  penal  law  to  be  applicable  to  the  foreigner  passing 
our  shores  in  a  foreign  yessel  on  his  way  to  a  foreign  port.  *  *  * 

"  Having  arrived  at  this  conclusion,  it  becomes  necessary  to  con- 
sider the  second  point  taken  on  the  part  of  the  Crown,  namely, 
that  though  the  negligence  of  which  the  accused  was  guilty  occurred 
on  board  a  foreign  ship,  yet,  the  death  having  taken  place  on  board 
a  British  ship,  the  offense  fvas  committed  within  the  jurisdiction  of 
a  British  court  of  justice.  *  *  * 

"The  question  is — and  this  appears  to  me  to  have  been  lost 
sight  of  in  the  argument — not  whether  the  death  of  the  deceased, 
which  no  doubt  took  place  in  a  British  ship,  was  the  act  of  the  de- 
fendant in  such  ship,  but  whether  the  defendant,  at  the  time  the 
act  was  done,  was  himself  within  British  jurisdiction. 

"  But  in  point  of  fact,  the  defendant  was,  at  the  time  of  the  oc- 
currence, not  on  board  the  British  ship,  the  /Stnit/idi/de,  but  on  a 
foreign  ship,  the  Franconia.  *  *  * 

"But  in  order  to  render  a  foreigner  liable  to  the  local  law, 
he  must,  at  the  time  the  offense  was  committed,  have  been 
within  British  territory  if  on  land,  or  in  a  British  ship  if  at  sea.  I 
cannot  think  that  if  two  ships  of  different  nations  met  on  the  ocean, 
and  a  person  on  board  of  one  of  them  were  killed  or  W'Ounded  by  a 
shot  fired  from  the  other,  the  person  firing  it  would  be  amenable  to 
the  law  of  the  ship  in  which  the  shot  took  effect." 

Lush,  J.,  said,  in  part :  "  In  the  reign  of  Richard  II.,  the  realm 
consisted  of  the  land  within  the  body  of  the  counties.  All  beyond 
low- water  mark  was  part  of  the  high  seas. 

"  At  that  period  the  three-mile  radius  had  not  been  thought  of. 
International  law,  which,  upon  this  subject  at  least,  has  grown  up 
since  that  period,  cannot  enlarge  the  area  of  our  muncipal  law,  nor 
could  treaties  with  all  the  nations  of  the  world  have  that  effect. 
That  can  only  be  done  by  Act  of  Parliament.  As  no  such  act  has 
been  passed,  it  follows  that  what  was  out  of  the  realm  then  is  out  of 
the  realm  now,  and  what  was  part  of  the  high  seas  then  is  part  of 
the  high  seas  now ;  and  upon  the  high  seas  the  Admiralty  jurisdic- 
tion was  confined  to  British  ships.  Therefore,  although,  as  between 
nation  and  nation,  these  waters  are  British  territory,  as  being  under 
the  exclusive  dominion  of  Great  Britain,  in  judicial  language  they 


CHAP.  I.]  THE  QUEEN  V.    KEYN.  167 

are  out  of  the  realm,  and  any  exercise  of  criminal  jurisdiction  over  a 
foreign  ship  in  these  waters  must  in  my  judgment  be  autliorized  by 
an  Act  of  Parliament." 

Lord  Coleridge,  C.  J.,  dissenting  from  the  opinion  of  the  majority, 
said,  in  part  *  *  *  "  But,  first,  I  think  the  offense  was  committed 
within  tlie  realm  of  England ;  and  if  so,  there  was  jurisdiction  to 
try  it.  *  *  * 

"Now  the  offense  was  committed  much  nearer  to  the  line 
of  low- water  mark  than  three  miles  ;  and  therefore,  in  my  opinion, 
upon  English  territory.  I  pass  by  for  the  moment  the  question 
of  the  exact  limit  of  the  realm  of  England  beyond  low-water 
mark,  I  am  of  opinion  that  it  does  go  beyond  low- water  mark; 
and  if  it  does,  no  limit  has  ever  been  suggested  which  would  ex- 
clude from  the  realm  the  place  where  this  offense  was  committed. 
But  for  the  difference  of  opinion  of  the  Bench,  and  for  the  great  def- 
erence which  is  due  to  those  who  differ  from  me,  I  should  have  said 
it  was  impossible  to  hold  that  England  ended  with  low-water  mark. 
I  do  not  of  course  forget  that  it  is  freely  admitted  to  be  within  the 
competency  of  Parliament  to  extend  the  realm  how  far  soever  it 
pleases  to  extend  it  by  enactments,  at  least  so  as  to  bind  the  tribu- 
nals of  the  country ;  and  I  admit  equally  freely  that  no  statute  has 
in  plain  terms,  or  by  definite  limits,  so  extended  it. 

"  But,  in  my  judgment,  no  Act  of  Parliament  was  required.  The 
proposition  contended  for,  as  I  understand,  is  that  for  any  act  of 
violence  committed  by  a  foreigner  upon  an  English  subject  within  a 
few  feet  of  low- water  mark,  unless  it  happens  on  board  a  British 
ship,  the  foreigner  cannot  be  tried,  and  is  dispunishable.  *  *  * 

"By  a  consensus  of  writers,  without  one  shigle  authority  to 
the  contrary,  some  ]3ortion  of  the  coast-waters  of  a  country  is 
considered  for  some  purposes  to  belong  to  the  country  the  coasts  of 
which  they  wash.  *  *  * 

"This  is  established  as  solidly,  as,  by  the  very  nature  of  the 
case,  any  proposition  of  international  law  can  be.  Strictly 
speaking,  international  law  is  an  inexact  expression  and  it  is  apt  to 
mislead  if  its  inexactness  is  not  kept  in  mind.  Law  implies  a  law- 
givc]-,  and  a  tribunal  capable  of  enforcing  it  and  coercing  its  trans- 
gressors. 

"  But  there  is  no  common  law-giver  to  sovereign  states  and  no 
tribunal  has  the  power  to  bind  them  by  decrees  or  coerce  them  if  they 
transgress.  The  law  of  nations  is  that  collection  of  usages  which 
civilized  states  have  agreed  to  observe  in  their  dealings  with  one 
another.  What  these  usages  are,  whether  a  particular  one  has  or 
has  not  been  agreed  to,  must  be  matter  of  evidence.    Treaties  and 


168  STATES.  [PAKT  I. 

acts  of  state  are  but  evidence  of  the  agreement  of  nations,  and  do  not 
in  this  county  at  least  j^er  se  bind  tlie  tribunals.  Neither,  certainly 
does  a  consensus  of  jurists  ;  but  it  is  evidence  of  the  agreement  of 
nations  on  international  points  ;  and  on  such  points,  when  they  arise, 
the  English  courts  give  effect,  as  part  of  English  law,  to  such  agree- 
ment. *  *  * 

"TVe  find  a  number  of  men  of  education,  of  many  different 
nations,  most  of  them  uninterested  in  maintaining  any  particular 
thesis  as  to  the  matter  now  in  question,  agreeing  generally  for 
nearly  three  centuries  in  the  proposition  that  the  territory  of  a  mari- 
time country  extends  beyond  low-water  mark. 

"I  can  hardly  myself  conceive  stronger  evidence  to  show  that,  as 
far  as  it  depends  on  the  agreement  of  nations,  the  territory  of  mari- 
time countries  does  so  extend.  *  *  * 

"If  the  matter  were  to  be  determined  for  the  first  time,  I 
should  not  hesitate  to  hold  that  civilized  nations  had  agreed  to  this 
prolongation  of  the  territory  of  maritime  states,  upon  the  authority 
of  the  writers  who  have  Ijeen  cited  in  this  argument  as  laying  down 
the  affirmative  of  this  proiDosition.  *  *  * 

"  Furthermore,  it  has  been  shown  that  English  judges  have 
held  repeatedly  that  these  coast  waters  are  portions  of  the  realm. 
It  is  true  that  this  particular  point  does  not  seem  ever  distinctly  to 
have  arisen.  But  Lord  Coke,  Lord  Stowell,  Dr.  Lushington,  Lord 
Hatherley,  L.  C,  Erie,  C.  J.,  and  Lord  Wensleydale  (and  the  catalogue 
might  be  largely  extended)  have  all,  not  hastily,  but  in  writing, 
in  prepared  and  deliberate  judgments,  as  part  of  the  reasoning 
necessary  to  support  their  conclusions,  used  language,  some  of  them 
repeatedly,  which  I  am  unable  to  construe,  except  as  asserting,  on 
the  part  of  these  eminent  persons,  that  the  realm  of  England,  the 
territory  of  England,  the  property  of  the  state  and  Cro\vm  of  Eng- 
land over  the  water  and  the  land  beneath  it,  extends  at  least  so  far 
beyond  the  line  of  low  water  on  the  English  coast,  as  to  include  the 
place  where  this  offense  was  committed.  *  *  *  The  English  and 
American  text  writers,  and  two  at  least  of  tlie  most  eminent  Ameri- 
can judges,  Marshall  and  Story,  have  held  the  same  thing. 

"Further — at  least  in  one  remarkable  instance — the  British 
Parliament  has  declared  and  enacted  this  to  be  the  law.  In  the  pres- 
ent reign  two  questions  arose  between  Her  Majesty  and  the  Prince 
of  Wales  as  to  the  property  in  minerals  below  high-water  mark 
around  the  coast  of  Cornwall.  The  first  question  was  as  to  the  prop- 
erty in  minerals  Ijetween  high  and  low-water  mark  aronnd  the 
coasts  of  that  comity  ;  and  as  to  the  property  in  minerals  below  low- 
water  mark  Avon  by  an  extension  of  Avorkings  begun  above  Ioaa'- 
water  mark. 


CHAP.  I.]  THE  QUEEN  V.    KEYN.  169 

"The  whole  argument  on  the  part  of  the  Crown  was  founded  on 
the  proposition  tliat  tlie  fundus  maris  below  low- water  mark,  and 
therefore  beyond  the  limits  of  the  county  of  Cornwall,  belonged  in 
property  to  the  Crown.  The  Prince  was  in  possession  of  the  dis- 
puted mines ;  he  had  worked  them  from  land  undoubtedly  his  own ; 
and,  therefore,  unless  the  Crown  had  a  right  of  property  in  the  bed 
of  the  sea,  not  as  first  occupier — for  the  Prince  was  first  occupier, 
and  was  in  occupation — the  Crown  must  have  failed.  *  *  *  Sir  .John 
Patterson  *  *  *  thus  expressed  himself. — 'I  am  of  opinion,  and  so 
decide,  that  the  right  to  the  minerals  below  low- water  mark  remains 
and  is  vested  in  the  Crown,  although  those  minerals  may  be  won  by 
workings  commenced  above  low-water  mark  and  extended  below  it,' 
and  he  recommended  the  passing  of  an  Act  of  Parliament  to  give 
practical  effect  to  his  decision,  so  far  as  it  m' as  in  favor  of  the  crown. 
The  Act  of  Parliament  accordingly  was  passed,  the  21  &  22  Vict.  c.  109. 

"  We  have  therefore,  it  seems,  the  express  and  definite  authority  of 
Parliament  for  the  proposition  that  the  realm  does  not  end  with  low- 
water  mark,  but  that  the  open  sea  and  the  bed  of  it  are  part  of  the 
realm  and  of  the  territory  of  the  sovereign.  If  so,  it  follows  that 
British  law  is  supreme  over  it,  and  that  the  law  must  be  administered 
by  some  tribunal.  It  cannot,  for  the  reasons  assigned  by  my  Brother 
Brett,  be  administered  by  the  judges  of  oyer  and  terminer  ;  it  can  be, 
and  always  could  be,  by  the  Admiralty,  and  if  by  the  Admiralty, 
then  by  the  Central  Criminal  Court." 

The  Court  quashed  the  conviction. 

The  majority  of  the  Court  was  composed  of  Cockl)urn,  C.  J., 
Kelly,  C.  B.,  Bramwell,  -J.  A.,  Lush  and  Field,  JJ.,  Sir  R.  PhiUimore 
and  Pollock,  B. — Lord  Coleridge,  C.  J.,  Brett,  and  Amphlett,  J.  A., 
Grove,  Denman  and  Lindley,  JJ.,  dissenting.^ 

1  On  account  of  the  extreme  length  of  the  opinion  of  the  Lord  Cliief  Justice,  a 
considerable  part  of  it — and' a  part  interesting  and  valuable — has  been  necessarily 
omitted.  This  is  true  notably  of  that  portion  consisting  of  the  analysis  of  cases, 
and  of  the  abstract  of  the  opinions  of  text  writers.  It  is  regretted,  too,  that  the 
opinions  of  the  other  judges  cannot  be  given. 

For  criticisms  of  the  judgment  in  this  case,  see  Stephen's  History  of  the  Criminal 
Law,  II.,  29-42;  Maine's  International  Law,  p.  38;  Judge  Foster,  in  the  Am.  Law 
Rev.,  July,  ISTT;  Walker's  Science  of  International  Law,  p.  173. 

In  consequence  of  the  decision  in  this  case,  an  act  was  passed  In  the  session  of 
1878  (41  and  42  Vict.  c.  73),  which  would  seem  to  adopt  the  view  of  the  minority 
of  the  court.  The  preamble  declares  that  "  the  rightful  jurisdiction  of  her  Majesty, 
her  heirs  and  successors  extends  and  has  always  extended  over  the  open  seas 
adjacent  to  the  coasts  of  the  United  Kingdom,  and  of  all  other  parts  of  her  Majesty's 
dominions  to  such  a  distance  as  is  necessary  for  the  defense  and  security  of  sucli 
dominions,"'  and  that  "  it  is  expedient  that  all  offenses  committed  in  the  open  sea 
within  a  certain  distance  of  the  coasts  of  the  United  Kingdom  and  of  all  other  parts 


CHAPTER   II. 
TERRITORIAL   JURISDICTION. 


Section  7.  —  Eights,  Privileges  and  Immunities  of  Foreign 

Sovereigns. 


(a)     Right  of  Foreign  Sovereign  to  sue  in  Courts  of  Foreign  State. 

THE   REPUBLIC    OF   MEXICO   v.   FRANCISCO   DE 
ARRANGOIZ,    AND   OTHERS. 

Supreme  Court  of  the  City  of  New  York,   1855. 
(11  Howard's  Practice  Reports,  1.) 

Hoffman,  Justice.  The  defendant,  Francisco  de  Arrangoiz,  having 
been  arrested  under  an  order  made  by  one  of  the  justices  of  this  court, 
and  given  bail  to  the  amount  of  $60,000,  now  applies  to  be  discharged 
upon  the  insufficiency  of  the  affidavit  on  Avhich  the  order  was  granted, 
and  upon  further  affidavits  and  documents  on  his  own  part. 

The  first  question  relates  to  the  form  of  the  undertaking  given 
upon  the  arrest,  and  this  materially  depends  upon  the  correct  under- 
standing of  the  position  of  the  plaintiff  upon  the  record. 

The  right  of  a  foreign  sovereign  to  sue  in  the  courts  of  England, 
upon  which  Lord  Thurlow  entertained  doubts,  has  been  fully  settled 
and  sustained.  In  the  case  of  The  King  of  Spain  v.  Maehado,  4  Rus- 
sell, 560,  and  1  Bligh,  N.  S.  60,  Lord  Redesdale  speaks  of  it  as  one  of 

of  her  Mnjesty's  dominions,  by  whomsoever  committed,  should  be  dealt  with  according 
to  law." 

Tiie  act  is  entitled  the  Territorial  Waters  Jurisdiction  Act,  1878;  and  enacts  that, 

"  An  offense  committed  by  a  person,  whetlier  he  is  or  is  not  a  subject  of  her 
Majesty,  on  tiie  open  sea  within  the  territorial  waters  of  Iier  Majesty's  dominions,  is 
an  offense  within  the  jurisdiction  of  tlie  Admiral,  altliough  it  may  liave  been  committed 
on  board  or  by  means  of  a  foreign  ship,  and  tlie  person  who  committed  such  offense 
may  be  arrested,  tried,  and  punislied  accordingly. 

"  But  no  proceedings  under  this  act  are  to  be  instituted  against  a  foreigner,  without 
the  consent  and  certificate  of  a  Secretary  of  State,  or  in  the  case  of  a  colony,  the  cer- 
tificate of  tlie  Governor. 

"The  Territorial  waters  of  her  Majesty's  dominions,  in  reference  to  the  sea,  means 
such  part  of  the  sea  adjacent  to  the  coast  of  the  United  Kingdom,  or  tlie  coast  of 
some  other  part  of  her  Majesty's  dominions,  as  is  deemed  by  international  law  to  be 
■within  the  territorial  sovereignty  of  her  Majesty;  and  for  the  purpose  of  any 
offense  declared  by  this  act  to  be  within  the  jurisdiction  of  the  Admiral,  any  part 
of  tlie  open  sea  within  one  marine  league  of  the  coast  measured  from  low-water  mark 
shall  be  deemed  to  be  open  sea  within  the  territorial  waters  of  her  Majesty's 
dominions."  —  Ed. 


CHAP.  II.]  EEPUBLIC    OF   MEXICO    V.   ARRANGOIZ.  171 

the  clearest  cases  that  could  be  stated  :   "  That  he  sues  as  a  sovereign, 
either  on  his  own  behalf,  or  on  behalf  of  his  subjects."     See,  also,  The 
Kahoh  of  the  Carnatie  v.  East  India  Company,   1  Vesey,  jr.,  371;   The 
King  of  Hanover  y .  Wheatley,   4  Beavan,   78;  Hullett  v.  The  King  of 
Spain] 2  Bligh,  N.  S.  31,  and  1  Clark  &  Finnelly,  33. 

It  will  be  seen,  that  in  all  the  English  cases  in  which  the  right  to 
sue  has  been  admitted,  the  plaintiff  "was  a  monarch,  and  was  treated 
as  an  individual.  The  case  of  The  City  of  Berne  v.  The  Bank  of  Eng- 
land, 9  Vesey,  348,  was  decided  upon  the  point  of  the  State  not  having 
been  recognized  by  the  British  government.  It  is  also  to  be  noticed 
that  the  bill  was  by  a  common  councilman,  on  behalf  of  himself  and 
his  associates  in  the  government.  This  appears  from  the  report  of 
the  case  of  Bolder  v.  The  Bank  of  England,  10  Vesey,  353;  and  in 
Bolder  v.  Hxuitingfield,  11  Vesey,  283,  the  suit  was  by  individuals  de- 
scribing themselves  as  Llandamman  and  two  Statholders  of  the  Hel- 
vetic Republic,  in  ■whom  the  executive  power  was  vested  by  the 
constitution. 

When  the  case  of  The  King  of  Spain  v.  Machado  was  first  before  the 
court,  it  was  held  that  two  persons,  the  agents  of  the  king,  and  to 
whom  he  had  given  a  power  of  attorney  to  collect  and  deposit  the 
funds,  but  who  had  no  interest  in  the  amount,  could  not  be  joined  with 
the  king  as  co-plaintiffs.     4.  Russell's  Rep.  255. 

The  case  of  the  Colomhian  Government  v.  Rothschild,  1  Simons'  Rep. 
103,  is  of  importance  in  ascertaining  the  English  rule,  not  merely  be- 
cause it  was  decided  by  a  very  able  judge  (Sir  John  Leach),  but  that 
it  has  received  the  sanction  of  Lord  Eldon,  Lord  Redesdale,  and  Lord 
Brougham.  (Compare  the  report  in  the  House  of  Lords  in  1  Dow.  & 
Clark,  witli  tliat  in  1  Clark  &  Finnell}',  33.) 

The  bill  was,  in  form,  by  the  government  of  the  State  of  Colombia, 
and  Don  ]\Ianuel  T.  Hutado,  a  citizen  of  such  state,  and  minister 
plenipotentiary  from  the  same  to  the  court  of  his  Britannic  majesty, 
the  place  of  his  residence  stated.  On  general  demurrer,  it  was  held 
that  the  bill  could  not  be  sustained.  The  vice-chancellor  said,  that  a 
foreign  state  is  as  well  entitled  to  the  aid  of  the  court,  in  asserting  its 
rights,  as  any  individual ;  but  it  must  sue  in  a  form  that  makes  it  pos- 
sible for  the  court  to  do  justice  to  the  defendants.  It  must  sue  in  the 
name  of  some  public  officers,  who  are  entitled  to  sue  in  the  name  of 
the  state,  and  upon  whom  process  can  be  served  on  the  part  of  the 
defendants,  and  who  can  be  called  upon  to  answer  a  cross-bill.  The 
general  description  of  the  Colombian  government  precluded  the  de- 
fendants from  these  just  rights,  and  no  instance  could  be  stated  in 
which  the  court  had  entertained  the  suit  of  a  foreign  state,  by  such  a 
description. 


172  TEKRITOF.IAL    JURISDICTION.  [PART  I. 

The  English  authorities  appear  to  settle  these  points.  That  the 
sovereign  of  a  foreign  state  may  sue  in  the  tribunals  of  the  realm,  but 
he  sues  as  an  individual.  An  action  cannot  be  sustained  in  the  name 
of  his  agent,  although  they  may  be  empowered  to  act  in  the  identical 
business.  He  is  the  party  in  interest.  He  must  swear  to  answer  a 
cross-bill,  if  one  is  required.  He  would  be  the  party  to  be  examined 
personally,  whenever  such  an  examination  was  warranted  by  the  rules 
of  the  court. 

Again  :  If  a  State  sues,  without  the  individuality  of  a  monarch,  some 
public  officer  representing  it  must  be  upon  the  record;  and  it  seems 
that  a  minister  plenipotentiar}'  is  not  such  an  officer. 

I  cannot  think  that  an  examination  of  the  old  cases,  referred  to  by 
counsel  in  The  Xahob  of  the  Carnatic  v.  The  East  India  Companij,  will 
tend  to  prove  that  an  ambassador  may  sustain  an  action  on  behalf  of 
his  sovereign,  notwithstanding  the  doubts  of  Lord  Kosslyn  upon  the 
subject.     3  Vesey,  431. 

In  The  K'lnrj  of  $2) a  in  v.  Oliver,  1  Peter's  C.  C.  Eep.  217,  276,  an  ac- 
tion for  the  recovery  of  duties,  alleged  to  be  payable  to  the  Crown, 
was  brought  in  the  circuit  court,  and  decided  upon  its  merits.  It 
appears  that  an  application  was  made  for  a  continuance,  to  take 
testimony  under  a  commission,  upon  the  affidavit  of  the  Spanish 
minister. 

These  are  all  the  authorities  I  have  been  able  to  find  upon  the  sub- 
ject; and  I  believe  the  question  is  entirely  new  in  our  country.  The 
principle  which  pervades  the  English  cases  is  marked  bj-  that  spirit 
of  equality  and  justice  which  is  the  inmate  of  English  tribunals, 
and  that  principle  places  the  sovereign  and  the  peasant  on  the  same 
footing. 

But  the  reason  of  the  English  rule  lies  deeper.  It  has  its  origin  in 
that  leading  doctrine  of  European  policy  which,  in  the  language  of 
Guizot,  places  "the  personification  of  the  state  in  the  institution  of 
monarchy."  This  embodiment  of  the  commonwealth  in  the  individual 
has  given  way,  over  the  continent  of  America,  to  the  idea  of  the  con- 
centration of  the  power  in  the  people  in  an  abstraction.  Legitimate 
sovereignty  does  not  find  its  representative  in  a  king  with  his  person- 
ality, but  in  a  republic  with  its  idealism. 

Still  there  is  the  same  brotherhood  and  communion  of  states  to  be 
recognized.  The  same  family  of  nations,  though  with  different  names 
and  different  forms,  exist  ;  and  their  rights,  and  their  responsibilities, 
must  be  forever  the  same.  The  catholic  law  of  nations  is  identical  in 
its  application  to  all. 

We  must,  then,  admit  these  recognized  governments  to  sue  in  our 
courts  under  their  federative  title,  and  adapt  our  forms  of  proceeding, 


CHAP,   ri.]  PRIOLEAU    V.    UNITED    STATES.  173 

if  possible,  so  as  to  do  justice  to  all  parties ;  or  we  must  allow  an  indi- 
vidual representative,  clothed  with  competent  authority  from  his  gov- 
ernment, to  act  on  its  behalf,  and  thus  have  a  party  on  the  record  who 
can  be  strictly  subjected  to  those  forms. 

In  my  opinion,  the  action  can  be  maintained  in  the  name  of  the  re- 
public as  an  aggregate  body  ;  and  the  modes  of  proceeding  in  cases  of 
foreign  corporations,  and  of  other  States  of  the  Union,  may  be  resorted 
to  for  the  regulations  of  the  practice. 

Before  the  Revised  Statutes  had  embodied  the  law  into  an  express 
provision,  Chancellor  Kent  had  decided  that  a  foreign  corporation 
could  file  a  bill  in  our  Court  of  Chancer}^  as  well  as  sustain  a  suit  at 
law.  Silver  Lake  Bank  of  Peiinsylvaaia  v.  Xortli,  4  John.  C.  R.  371. 
Such  a  suit  was  brought  in  this  court  in  The  Holyoke  Bank  v.  Hast- 
ings, 4  Sandf.  Rep.  (Jlo. 

Our  highest  court  has  also  settled,  that  either  of  the  States  of  the 
Union  may  sue  in  our  State  courts  ;  and  difficulties  of  practice  are  not 
found  insuperable.  State  of  Illinois  v.  Delafield,  2  Hill,  159,  8  Paige, 
527  ;  State  of  Indiana  v.  Worani,  6  Hill,  36. 

With  these  views,  I  consider  the  objection  to  the  undertaking  not 
tenable.  The  language  of  the  Code  admits  of  the  court  treating  an 
undertaking,  signed  by  an  admitted  agent  of  a  foreign  government  ap- 
pointed to  sue,  to  be  an  undertaking  on  the  part  of  the  plaintiff.  In 
the  case  of  Richardson  v.  Crary,  1  Duer,  666,  referred  to  by  the  coun- 
sel of  the  defendant,  the  instrument  was  executed  by  sureties  alone; 
neither  by  the  plaintiff  nor  by  any  one  on  his  behalf.^ 


PRIOLEAU   V.  UNITED   STATES   AND   ANDREAV  JOHXSOX. 

In  Equity,  1866. 
{Law  Reports,  2  Equitij,  659.) 

This  was  a  cross-bill  to  a  suit  of  United  States  v.  Prioleau.  (^Supra^ 
§  5,  a.) 

The  original  suit  was  instituted  by  the  United  States  of  America 
suing  in  their  corporate  capacity  to  establish  their  rights  to  cotton 
shipped  at  Galveston,  Texas,  during  the  rebellion  and  consigned  to 
the  defendants,  for  sale  in  England  for  the  benefit  of  the  de  facto  Cou- 

1  Remainder  of  opinion  omitted.     Affirmed  on  appeal   5  Duer,  634. 

In  King  of  Prussia  v.  Kiipper,  1856,  22  IMo.  550,  citing  with  approval  the  principal 
case,  it  was  held  that  a  foreign  sovereign  could  sue  in  a  Missouri  court,  and  that  such 
sovereign  may  be  plaintiff  in  either  State  or  Federal  courts.  — Ed. 


174  TERRITORIAL   JURISDICTION.  [PART  I. 

federate  Government.  The  United  States,  as  plaintiffs,  moved  for 
an  injunction  to  restrain  the  defendants  from  obtaining  possession 
of  tlie  cotton  from  tlie  Dock  and  Harbor  Board,  and  from  dealing 
with  it  otherwise  than  under  the  direction  of  the  plaintiffs,  who 
claimed  it  as  State  property  to  which  they  had  succeeded  on  the  dis- 
solution of  the  so-called  Confederate  Government. 

The  Vice-Chancellor  made  an  order  appointing  Mr.  Prioleau 
receiver  of  the  cotton  under  bond  of  £20,000.  Messrs.  Prioleau  filed 
this  cross-bill  against  the  United  State  of  America  and  President 
Andrew  Johnson,  for  the  purpose  of  obtaining  discovery  in  reference 
to  the  matters  in  question  in  the  suit. 

No  answer  having  been  put  in  by  President  Johnson,  the  plaint- 
iff's in  the  cross -suit  moved  that  the  time  for  closing  the  evidence 
in  tlie  first  suit  might  be  enlarged  until  one  month  after  the  defend- 
ants to  the  cross-bill  had  put  in  their  answer,  and  that,  failing  such 
answer,  the  receivership  of  Prioleau  miglit  be  discharged  and  his 
recognizances  vacated. 

The  following  are  extracts  from  the  opinion  of  Yice-Chaiicellor  Sir 
W.  Page  ^Vood  :  — 

"  The  question  in  this  case  is  one  in  some  degree  novel,  but  the 
general  principles  applicable  to  it  are  sufficiently  established.  The 
only  difficulty  in  the  present  case  is  the  particular  mode  selected  by 
the  plaintiffs  in  the  cross-suit  for  arriving  at  the  object  they  have 
in  view.  A  bill  being  flled  by  the  United  States  of  America,  under 
that  description,  against  the  defendants,  a  cross-bill  is  filed  by  the 
defendants  for  the  purpose  of  obtaining  discovery.  They  cannot,  of 
course,  obtain  discover}^  upon  oath  from  a  body  which  is  corporate 
— it  is  difficult  to  know  how  to  express  its  position.  It  is  not  a 
corporation,  strictly  speaking,  but  it  is  a  body  so  far  corporate  as 
not  to  present  to  the  court  as  a  suitor  any  one  individual.  "VThere 
the  suitor  is  an  individual,  although  he  may  be  the  sovereign  of  a 
foreign  country,  and  may  of  himself  in  realit}'  represent  the  whole 
country  of  which  he  is  sovereign,  this  court  has  refused  to  acknowl- 
edge him  when  he  comes  here  as  a  suitor  in  any  other  capacity  than 
as  a  private  individual.  It  has  been  determined  by  the  highest  au- 
thority that  he  must  conform  to  the  practice  and  regulations  for 
administration  of  justice  of  the  tribunals  to  which  he  resorts  for 
relief ;  and  among  other  things  *  *  *  he  is  obliged  to  answer  upon 
oath.  It  is  also  established  ***  that  all  persons  sued  in  this 
country  as  a  body  corporate  are  amenable  to  the  process  of  the 
court,  and  must  answer  by  one  or  other  of  their  officers  upon  oath, 
inasmuch  as  it  is  considered  essential  to  justice  that  answers  shall  be 
made  upon  oath.  *  *  *    Now  it  is  quite  impossible,  on  any  principle 


CHAP.  II.]       UNITED    STATES    OF   AMERICA    V.    M^AGNEE.  175 

of  analogy,  to  say  that  the  President  has  been  properly  selected,  or 
that  he  is  the  person  for  whose  answer  upon  oath  the  United  States 
must  wait  before  tliey  proceed  in  tlieir  original  suit.  *  *  *  Now  the 
selection  of  the  President  of  the  United  States  is  open  at  once  to  this 
objection,  that  the  court  cannot  take  judicial  notice — nor  do  I  sup- 
pose it  is  a  matter  of  fact — that  the  United  States  Government  have 
control  over  their  President  or  can  compel  him  to  produce  papers  or 
the  like,  and  therefore  I  cannot  make  any  order  that  the  proceed- 
ings in  the  original  suit  be  stayed  until  the  President  has  put  in  his 
answer.  *  *  * 

"  I  can  do  no  more  than  make  an  order  staying  proceedings  until 
the  answer  of  the  United  States  is  put  in." 


UXITED   STATES   OF  AMERICA  v.  WAGXER. 
Court  of  Appeals  in  Chaxceky,  1867. 
(Law  Eepoits,  2  Chancery  Appeals,  582.) 

The  bill  in  this  suit  was  filed  by  "  The  United  States  of  America  " 
against  agents  of  the  Confederac}^  doing  business  at  Liverpool. 

The  bill  alleges  that  the  defendants  had  large  quantities  of  cotton 
consigned  to  them — that  in  1865  tlie  rebellion  was  suppressed  and 
that  all  the  property  held  by  the  government  of  the  so-called  Con- 
federate States,  including  all  moneys,  goods  and  ships  in  the  power 
of  the  defendants,  had  vested  in  the  plaintiffs.  The  bill  prayed  for 
an  account,  and  for  an  order  of  payment  of  the  money  in  the  hands 
of  the  defendants,  and  a  delivery  of  the  goods  and  cotton  in  their 
hands.  The  defendants  demurred  generally,  objecting  that  the  bill 
should  put  forward  the  President  of  the  United  States  or  some  state 
officer,  upon  whom  process  might  be  served,  and  who  might  answer 
a  cross-bill. 
The  demurrer  was  allowed  and  now  the  plaintiffs  appeal.^ 
The  opinion  of  Lord  CaipvXs,  L.  J.,  is  as  follows  : — 
"  It  is  admitted  that,  upon  the  statements  in  the  bill,  it  must 
be  taken  that  the  property  claimed  in  the  suit  belongs  to  the 
L'nited  States  of  America,  a  foreign  sovereign  State,  adopting  the 
republican  form  of  government,  and  recognized  and  treated  with  as 
such,  and  under  that  style,  by  Her  Majesty;  but  it  is  contended 
that  this  foreign  State,  being  a  republic,  cannot  sue  m  its  own  name, 

1  Statement  by  the  editor. 


176  TERRITORIAL    JUIIISDICTION.  [PART  I. 

and  must  either  associate  witli  it  as  plaintiff,  or  proceed  in  tlie  name 
of  the  President  of  tlie  Republic,  or  some  other  officer  of  state. 

"  A  proposition  so  startling,  so  grave  in  its  consequences,  and  in 
such  apparent  antagonism  to  the  rules,  that  the  proper  plaintiff  is 
to  be  sought  in  the  owner  of  the  subject  matter  of  the  suit,  and  that  a 
foreign  State  is  at  liberty  to  sue  in  any  of  our  courts,  would  seem  to 
require  some  argument  and  authority  to  support  it.  It  was  contended 
then,  that  when  a  monarch  sues  in  our  courts,  he  sues  as  the  rep- 
resentative of  the  State  of  which  he  is  the  sovereign ;  that  the 
property  claimed  is  looked  upon  as  the  property  of  the  people  or 
State  and  that  he  is  permitted  to  sue,  not  as  for  his  own  property, 
but  as  the  head  of  the  executive  government  of  the  State  to  which 
the  property  belongs :  and  it  was  contended,  in  like  manner,  that 
when  the  property  belongs  to  a  republic,  the  head  of  the  executive, 
or  in  other  words  the  President,  ought  to  sue  for  it. 

"  This  argument,  in  my  opinion,  is  founded  on  a  fallacy.  The 
sovereign,  in  a  monarchical  form  of  government,  may,  as  between 
himself  and  his  subjects,  be  a  trustee  for  the  latter,  more  or  less 
limited  in  his  powers  over  the  property  Avhich  he  seeks  to  recover. 
But  in  the  courts  of  Her  Majesty,  as  in  diplomatic  intercourse  with 
the  government  of  Her  Majesty,  it  is  the  sovereign,  and  not  the  State, 
or  the  subjects  of  the  sovereign,  that  is  recognized.  From  him,  and 
as  representing  him  individually,  and  not  his  State  or  kingdom,  is  an 
ambassador  received.  In  him  individually,  and  not  in  a  representa- 
tive capacity  is  the  public  property  assumed  by  all  other  States,  and 
by  the  courts  of  other  States,  to  be  vested.  In  a  republic,  on  the 
other  hand,  the  sovereign  power,  and  with  it  the  public  property,  is 
held  to  remain  and  to  reside  in  the  State  itself,  and  not  in  any 
officer  of  the  State.  It  is  from  the  State  that  an  ambassador  is  ac- 
credited, and  it  is  with  the  State  that  the  diplomatic  intercourse  is 
conducted. 

"  It  was  then  contended  tbat  the  republic  of  the  United  States  as 
a  body  politic,  being  plaintiff',  no  effectual  discovery  could  be  had 
from  it,  or  relief  against  it,  on  a  cross-bill ;  that  it  is  a  condition  of 
obtaining  relief  in  equity,  that  discovery  may  be  had  against  the 
plaintiff  on  a  cross-bill  filed  by  the  defendant ;  and  that  in  the  case 
of  a  corporation,  this  right  is  preserved  by  the  rule  that  its  officers 
may  be  made  co-defendants  for  discovery. 

"  It  is  to  be  observed,  however,  with  regard  to  the  case  of  a  cor- 
poration, where  the  court  making  an  exception  from  its  general 
rules  allows  persons  who  are  merely  witnesses  to  be  made  co- 
defendants  for  discovery,  that  the  exception  does  not  depend  on  any 
reasons  springing  out  of  the  nature  of  bills  and  cross-bills ;  for  the 


CHAP.  II.]       UNITED    STATES    OF   A:MERICA    V.    WAGNER.  177 

officers  of  a  corporation  may  be  sued  with  the  corporation,  even 
where  no  litigation  has  been  commenced  by  the  corporation ;  nor 
does  the  liabihty  of  tlie  officers  to  discovery  affect  the  question  who 
is  to  be  plaintiff  ;  for  the  corporation  sues  for  the  corporate  property 
witliout  joining  any  officer  of  the  corporation  as  a  co-plaintiff. 

"  Tlie  rule  of  the  court  as  to  corporations,  if  it  proves  anything, 
would  seem  to  show  that  in  a  cross-bill  against  the  United  States, 
there  would  be  a  right  to  join  some  officer  of  the  United  States  for 
the  purpose  of  discovery. 

"  The  Vice-Chancellor  appears  to  have  thought  that  the  President 
of  the  United  States  was  not  an  officer  who  could  thus  be  joined  as  a 
defendant,  and  I  do  not  desire  to  express  an  opinion  differing  in 
that  respect  from  the  opinion  of  his  Honor.  But  if  the  reference  to 
suits  against  corporations  does  not  establish  a  right  to  make  some 
officer  of  the  United  States  a  co-defendant  to  a  cross  bill,  it  is,  as 
I  think,  altogether  irrelevant.  It  is,  however,  in  my  opinion,  an 
error  to  suppose  that  the  right  of  a  plaintiff  to  sue  depends  in  any 
way  on  the  effectiveness  of  the  discovery  which  on  a  cross-bill  can 
be  exacted  from  him.  From  an  infant,  a  lunatic,  a  representative, 
trustee,  or  executor,  wholh'  ignorant  of  the  occuri'ences  which  are  the 
subjects  of  the  suit,  no  practical  discovery  can  be  obtained,  and  yet 
the}^  can  maintain  a  suit. 

"  I  apprehend  that  the  only  rule  is,  that  the  person.  State,  or  cor- 
poration which  has  the  interest  must  be  tbe  plaintiff,  and  the  court 
will  do  the  best  the  law  admits  of  to  secure  to  the  defendant  such 
defensive  discovery  and  relief  as  he  may  be  entitled  to.  The  court 
can  in  all  cases  suspend  relief  on  the  original  bill  until  justice  is  in 
this  respect  done  to  the  defendant. 

"  The  case  of  the  Columbian  Government  v.  Hothschild,  1  Sim.,  94, 
however,  was  said  to  be,  and  the  Vice- Chancellor  appears  to  have 
considered  that  it  was,  a  binding  authority  against  a  suit  in  this 
form.  I  cannot  so  view  that  case.  The  bill  was  filed  in  the  name  of 
the  State  of  Columbia,  and  if  this  bill  had  been  filed  in  the  name  of  the 
Government  of  the  United  States,  the  case  would  have  been  auala- 
gous.  Dealing  with  the  words  before  him.  Sir  John  Leach  appears 
to  have  held,  and  to  have  most  properly  held,  that  an  unknown 
and  undefined  body,  such  as  the  government  of  a  State,  could 
not  sue  by  that  quasi- corporate  name,  and  the  expressions  in  his 
judgment  seem  to  me  to  intimate  no  more  than  that  if  the  persons 
so  described  could  sue  at  all  they  must  come  forward  as  mdividuals, 
and  show  that  they  were  entitled  to  represent  their  State. 

"  Xothing  could  be  more  unreasonable  than  to  suppose  that  by 
observations  of  this  kind  Sir  John  Leach  meant  to  decide  for  the 

IJ 


178  TERRITORIAL   JURISDICTION.  [PAET  I. 

first  time,  tliat  a  republic  could  not  sue  in  its  own  name,  but  must 
have,  or  must  create,  some  officer  to  maintain  a  suit  on  its  behalf. 
"  I  think  the  demurrer  in  this  case  must  be  overruled."  ^ 


THE   SAPPHIRE. 

Supreme  Court  of  the  United  States,  1870. 

(11  Wallace,  164.) 

]\[r.  Justice  Bradley  delivered  the  opinion  of  the  court. 

The  hrst  question  raised  is  as  to  the  right  of  the  French  Emperor  to 

1  Other  cases  bearing  upon  the  subject  of  this  section  are:  The  King  of  Spain 
V.  Ilullet  and  Widder,  1  Clarke  and  Finnelly,  34S(18;3o): — Don  Justo  Jose  de 
Machado  Avas  appointed  by  tlie  Spanish  government  to  receive  money  for  tliat 
government  due  f roni  France.  Upon  receiving  it,  Machado  brouglit  the  money  to 
England  and  deposited  a  considerable  portion  of  it  with  tlie  defendants.  The  King 
of  Spain  applied  to  Machado  for  the  money,  but  tliis  demand  was  refused,  where- 
upon the  King  brought  a  bill  for  discovery  and  for  payment  of  the  money  into  coiu"t, 
against  Machado  (who  Avas  out  of  the  jurisdiction).  The  bill  was  demmred  to  for 
lack  of  parties,  etc.,  but  the  demurrer  was  overruled,  and  the  defendants  appealed, 
mainly  on  the  ground  that  it  had  never  been  held  that  a  foreign  sovereign  could 
sue  in  courts  of  equity  in  England,  and  on  principle  such  suit  shoidd  not  be  allowed. 
This  appeal  was  dismissed.  Fifteen  days  later,  the  defendants  filed  a  cross-bill  in 
Chancery,  the  rules  of  which  court  compel  the  identical  plaintiff  in  the  original 
bill  to  himself  swear  to  his  answer  to  a  cross-bill.  The  plaintiff  asked  to  put  in  an 
answer  either  by  his  agent,  or  without  oath  or  signature. 

The  House  of  Lords  refused  to  deviate  from  tlie  practice  of  the  court. 

Rothschild  v.  Queen  of  Portugal,  3  Younge  and  Collyer  594,  (1830):— The  bill 
was  brought  for  discovery  from  the  Queen  of  Portugal,  as  to  matters  stated  in  the 
bill,  and  for  a  commission  to  examine  witnesses  in  Portugal,  and  for  an  injunc- 
tion to  restrain  an  action  commenced  against  the  plaintiff  by  tlie  Queen  of  Portu- 
gal. This  action  was  in  contract,  the  Queen  suing  Messrs.  Rothschild  on  some 
bonds  deposited  with  them.  The  present  plaintiffs  now  seek  by  this  bill  for  dis- 
covery of  certain  correspondence  and  other  matters  to  aid  them  in  their  defence. 

The  Queen  demurs  to  tlie  bill  on  two  grounds,  (1)  that  as  a  sovereign,  the  suit 
was  not  maintainable  against  her — (2)  that  the  plaintiffs  had  made  no  case  for  dis- 
coveiy. 

The  first  point  only  is  considered. 

The  court  overruled  the  demurrer,  and,  in  the  course  of  its  decision,  Baron 
Alderson  said:  "  I  am  therefore  of  opinion  that  Her  Most  Faithful  Majesty  being 
a  suitor  voluntarily  in  a  court  of  English  law,  becomes  subject,  as  to  all  matters 
connected  with  that  suit,  to  the  jurisdiction  of  the  Court  of  Equity." 

1  In  Emperor  of  Austria  v.  Day  ^~  Kossuth,  1861,  2  Giff.  628,  a  foreign  sovereign's  right 
to  sue  was  discussed  with  great  learning,  especially  in  Sir  Ilugli  Cairns'  argument  for 
the  plaintiff  (665-675).  On  appeal,  the  judgment  of  Vice-Ciiancellor  Stuart  grant- 
ing the  injunction  was  affirmed  by  tlie  House  of  Lords  in  3  De  Gex.,  F.  &  J.  217. 
The  opinion  of  Lord  Justice  Turner  is  especially  valuable  — En. 


CHAP.  II.]  THE   SAPPHIRE.  179 

sue  in  our  courts.  On  this  point  not  the  slightest  difficulty  exists. 
A  foreign  sovereign,  as  well  as  any  other  foreign  person,  who  has  a 
demand  of  a  civil  nature  against  any  person  here,  may  prosecute  it  in 
our  courts.  To  deny  him  this  privilege  would  manifest  a  want  of 
comity  and  friendly  feeling.  Such  a  suit  was  sustained  in  behalf  of 
the  king  of  Spain  in  the  third  circuit  by  Justice  Washington  and 
Judge  Peters  in  1810.^  The  Constitution  expressly  extends  the  judi- 
cial power  to  controversies  between  a  State,  or  citizens  thereof,  and 
foreign  states,  citizens,  or  subjects,  without  reference  to  the  subject- 
matter  of  the  controversy.  Our  own  Government  has  largely  availed 
itself  of  the  like  privilege  to  bring  suits  in  the  English  courts  in  cases 
growing  out  of  our  late  civil  war.  Twelve  or  more  of  such  suits  are 
enumerated  in  the  brief  of  the  appellees,  brought  within  the  last  five 
years  in  the  English  law,  chancery,  and  admiralty  courts.  There  are 
numerous  cases  in  the  English  reports  in  which  suits  of  foreign  sov- 
ereigns have  been  sustained,  though  it  is  held  that  a  sovereign  cannot 
be  forced  into  court  by  suit.^ 

The  next  question  is,  whether  the  suit  has  become  abated  by  the  re- 
cent deposition  of  the  Emperor  Xapoleon.  "We  think  it  has  not.  The 
reigning  sovereign  represents  the  national  sovereignty,  and  that  sov- 
ereignty is  continuous  and  perpetual,  residing  in  the  proper  successors 
of  the  sovereign  for  the  time  being.  Napoleon  was  the  owner  of  the 
Enrijale,  not  as  an  individual,  but  as  sovereign  of  France.  This  is  sub- 
stantially averred  in  the  libel.  On  his  deposition  the  sovereignty 
does  not  change,  but  merely  the  person  or  persons  in  whom  it  resides. 
The  foreign  state  is  the  true  and  real  owner  of  its  public  vessels  of 
war.  The  reigning  Emperor,  or  National  Assembly,  or  other  actual 
person  or  party  in  power,  is  but  the  agent  and  representative  of  the 
national  sovereignty.  A  change  in  such  representative  works  no 
change  in  the  national  sovereignty  or  its  rights.  The  next  successor 
recognized  by  our  Government  is  competent  to  carry  on  a  suit  already 
commenced  and  receive  the  fruits  of  it.  A  deed  to  or  treaty  with  a 
sovereign  as  such  inures  to  his  successor  in  the  government  of  the 
country.  If  a  substitution  of  names  is  necessary  or  proper  it  is  a  for- 
mal matter,   and  can  be  made  by  the  court  under  its  general  power 

1  King  of  Spain  v.  Oliver,  2  Washington's  Circuit  Court,  431 

2  King  of  Spain  v.  Hullett,  1  Dow  &  Clarke,  169  ;  S.  C,  1  Clark  &  Fliinelly,  333  ;  S,  C, 
2Bligh,  N.  S.,  31;  Emperor  of  Brazil,  6  Adolpluis  &  Ellis,  801  ;  Queen  of  Portugal,! 
Clark  &  Finnelly,  46(5;  King  of  Spain,  4  Russell,  225;  Emperor  of  Austria,  Z  De  Gex, 
Fisher  &  Jones,  174;  King  of  Greece,  Q  Dowling's  Practice  Cases,  12  ;  S.  C,  1  Jurist, 
914;  United  States  Law  Reports,  2  Equity  Cases,  659;  Ditto,  lb.  2  Chancery  Appeals, 
5S2 ;  Duke  of  Brunswick  V.  King  of  Hanover,  6  Beavan,  1;  S.  C,  2  House  of  Lords 
Cases.  1 ;  Dz  Haber  v.  Queen  of  Portugal,  17  Q.  B.  169;  also  2  Phillimore's  International 
X.aw,  part  vi,  chap,  i;  1  Daniers  Chancery  Practice,  chap,  ii,  §  2. 


180  TERRITORIAL    JURISDICTION.  [PART  I. 

to  preserve  due  symmetry  in  its  forms  of  proceeding.  No  allegation 
lias  been  made  that  any  change  in  the  real  and  substantial  ownership 
of  the  Eurijale  has  occurred  by  the  recent  devolution  of  the  sovereign 
l^ower.  The  vessel  has  always  belonged  and  still  belongs  to  the  French 
nation. 

If  a  special  case  should  arise  in  which  it  could  be  shown  that  injus- 
tice to  the  other  party  would  ensue  from  a  continiiance  of  the  proceed- 
ings after  the  death  or  deposition  of  a  sovereign,  the  court,  in  the 
exercise  of  its  discretionary  power,  would  take  such  order  as  the  exi- 
gency might  require  to  prevent  such  a  result. 

The  remaining  question  relates  to  the  merits  of  the  case. 


{b)    Immunity  of  Foreign  Sovereigns  from  Suit. 
DE   HABER  v.  QUEEX   OF  PORTUGAL. 
Queen's  Bench,  1851. 

(17  Queen's  Bench,  196.) 

The  plaintiff  commenced  an  action  of  debt  in  the  court  of  the  Lord 
Mayor  of  London  against  the  Queen  of  Portugal.  It  appears  that 
he  brought  action  for  12,136/  sterling  which  he  had  left  in  the  hands 
of  Ferreiri,  a  Lisbon  banker  and  which  Ferreiri  paid  over  to  the 
Portuguese  Government.  The  plaintiif,  proceeding  according  to  the 
custom  of  foreign  attachment  in  London,  sent  out  a  suunnons  for  the 
defendant  to  appear.  The  defendant  being  called  and  not  appearing, 
the  plaintiff  alleged  that  Senhor  Guilheme  Candida  Xavier  De  I^rito, 
of  London,  the  garnishee  had  money  and  effects  of  the  defendant  in 
his  hands,  and  prayed  to  attach  the  defendant  by  that  money. 
The  judge  awarded  an  attachment  as  prayed.^ 

The  judgment  of  the  court  was  delivered  by  Campbell,  C.  J.  : — • 
*  *  *  u  Notwithstanding  the  dictum  of  Hi/ztkershoel;  and  the  outlawry 
of  the  King  of  Spain,  supposed  to  be  related  by  Selden,  we  cannot 
doubt  that  the  awarding  of  the  attachment  in  the  present  case  by 
the  Lord  Mayor's  Court  was  an  excess  of  jurisdiction,  on  the  ground 
that  the  defendant  is  sued  as  a  foreign  potentate.  *  *  *  We  have 
now  to  consider  whether  Ave  can  grant  the  prohibition  on  the  appli- 
cation of  the  Queen  of  Portugal  before  she  appears  in  the  Lord 
Mayor's  Court.  The  plaintitt''s  counsel  argue  that,  before  she  can  be 
heard,  she  must  appear  and  be  put  in  bail,  in  the  alternative,  to  pay 

1  Sliort  statement  substituted  for  tliat  of  tlie  reporter.  —  Ed. 


CHAP.  II.]     DE  HABER  V.   QUEEN  OF  PORTUGAL.  181 

or  to  render.  It  would  be  very  ranch  tobe  lamented  if,  before  doing 
justice  to  her,  we  were  obliged  to  impose  a  condition  upon  herwliich 
would  be  a  further  indignity,  and  a  further  violation  of  the  law  of 
nations.  If  the  rule  were  that  the  application  for  a  prohibition  can 
only  be  by  the  defendant  after  appearance,  we  should  have  had  little 
scruple  in  making  this  an  exception  to  the  rule.  But  we  find  it  laid 
down  in  books  of  the  highest  authority  that,  where  the  court  to 
which  the  prohibition  is  to  go  has  no  jurisdiction,  a  prohibition  may 
be  granted  upon  the  request  of  a  stranger^  as  well  as  of  the  defendant 
himself. 

"  Therefore  this  court,  vested  with  the  power  of  preventing  all 
inferior  courts  from  exceeding  their  jurisdiction  to  the  prejudice  of 
the  Queen  or  her  subjects,  is  bound  to  interfere  when  duly  informed 
of  such  an  excess  of  jurisdiction.  What  has  been  done  in  this  case 
by  the  Lord  Mayor\s  Court  must  be  considered  as  peculiarly  in  con- 
tempt of  the  Crown,  it  being  an  insult  to  an  independent  sovereign, 
giving  that  sovereign  just  cause  of  complaint  to  the  British  Gov- 
ernment, and  having  a  tendency  to  bring  about  a  misunderstanding 
between  our  gracious  Sovereign  and  her  ally  the  Queen  of  Portugal. 

"  Therefore,  upon  the  information  and  complaint  of  the  Queen 
of  Portugal,  either  as  the  party  grieved,  or  as  a  stranger,  we  think 
we  are  bound  to  correct  the  excess  of  jurisdiction  brought  to  our 
notice,  and  to  prohibit  the  Lord  Mayor's  Court  from  proceeding 
further  in  this  suit. 

"  Rule  absolute  for  a  prohibition."  ' 

^  In  Munden  v.  Ditlce  of  Brunswick,  1847,  10  Q.  B.  655,  it  was  lield  insufficient  to  state 
that  defendant  was  sovereign  at  time  of  contracting  tlie  obligation  ;  it  must  be  stated 
that  sovereign  is  sovereign  at  time  of  suit  filed  or  of  the  plea  pleaded. 

In  Stroiisbcrg  v.  Republic  of  Costa  Rica  (1881),  44  Law  Times.  19'J,  James,  L.  J  ,  lays 
down  two  exceptions  to  rule  that  sovereign  may  not  be  sued.  "  One  is  tliat,  '  where 
a  foreign  sovereign  or  state  comes  into  the  municipal  courts  of  this  country  tor  liie 
purpose  of  obtaining  a  remedy,  then  by  way  of  defence  to  that  proceeding  —  by  way 
of  counterclaim  if  necessary  to  the  extent  of  defeating  that  claim  —  the  person  sued 
here  may  file  a  cross-claim,  or  take  any  other  proceeding  against  that  sovereign  or 
state  for  the  purpose  of  enabling  comjjlete  justice  to  be  done  between  them.'  The 
other  exception  is  'the  case  iu  whicli  a  foreign  sovereign  may  be  named  as  defendant 
for  the  purpose  of  giving  liim  notice  of  the  claim  which  the  plaintiff  makes  to  fiimls  in 
the  hands  of  a  third  person  or  trustee  over  whom  tliis  court  has  jurisdiction.'  "  Laur- 
ance,  J.,  in  Mir/hcll  v.  Sitltan  o/Jaliorp,  1  Q.  B.  1894,  149.  Tiiis  latter  case  practically 
decides  the  interesting  question  of  a  sovereign  sued  incognito.  If  he  declares  hi-nseif 
in  his  sovereign  capacity,  the  suit  must  drop.  In  tiic  recent  case  of  So.  African  Rep.  v. 
La  Coinpa<jnie  Franco-Bdrje  ^v.,  1898,  L.  R.,  1  Ch.  190,  a  foreign  sovereign  brought 
suit  in  England  to  restrain  defendants  from  using  a  fund  in  their  hands  in  certain  ways. 
Defendants  set  up  a  claim  for  damages,  upon  which  it  was  held,  that  while  a  sovereign 
suing  in  England  submits  to  the  jurisdiction  for  the  purposes  of  allowing  discovery  in 
aid  of  the  defendant  in  his  action  he  does  not  submit  to  what  is  in  its  real  nature  a  cross 


182  TERRITORIAL   JURISDICTION,  [PART  I. 

VAVASSEUK  V.    KRUPP. 

Chancery,  1878. 

{Law  Reports,  9  Chancery  Div.,  351.) 

Josiah  Vavasseur,  the  plaintiff  in  this  case,  had  brought  an  action 
against  F.  Krupp,  of  Essen,  in  Germany,  Alfred  Longsden,  his 
agent  in  England,  and  Ahrens  &  Co.,  described  as  agents  for  the 
Government  of  Japan,  claiming  an  injunction  and  damages  for  the 
infringement  of  the  plaintiff's  patent  for  making  shells  and  other 
projectiles.  The  shells  in  question  had  been  made  at  Essen,  in 
Germany,  had  been  there  bought  for  the  Government  of  Japan,  had 
been  brought  to  this  country  and  landed  here  in  order  to  be  put  on 
board  three  ships  of  war  which  were  being  built  here  for  the  Govern- 
ment of  Japan,  to  be  used  as  ammunition  for  the  guns  of  those  ships. 
On  the  18th  of  January,  1878,  an  injunction  was,  without  prejudice 
to  any  question,  granted,  restraining  the  defendants  and  the  owners 
of  the  wharf  where  the  shells  lay  from  selling  or  delivering  the  shells 
to  the  Government  of  Japan,  or  to  any  person  on  their  behalf,  or 
otherwise  from  parting  with,  selling,  or  disposing  of  the  shells  and 
projectiles. 

On  the  11th  of  May  an  application  to  the  court  was  made  on  be- 
half of  the  Mikado  of  Japan  and  his  Envoy  Extraordinary  in  this 
country,  that,  notwithstanding  the  injunction,  the  Mikado  and  his 
agents  might  be  at  liberty  to  remove  the  shells,  and  that  if,  and  so 
far  as  might  be  necessary,  the  Mikado  and  his  Envoy  should  for  the 
purpose  of  making  and  being  heard  upon  such  application  be  added 
as  defendants  in  the  suit. 

Upon  this  application  an  order  was  made  by  the  Master  of  the 
Rolls  that  on  the  Mikado  by  his  counsel  submitting  to  the  jurisdic- 
tion of  this  court  and  desiring  to  be  made  a  defendant,  and  on  pay- 
ment into  court  by  the  Mikado  of  £100  as  security  for  costs  the 
name  of  the  Mikado  be  added  as  a  party  defendant  in  the  action. 

Notice  of  motion  was  then  given  on  the  part  of  the  Mikado  that 

action.     Another  claim  arising:  from    another  and  distinct  matter  may  not  be  set  np. 
On  this  case  of  first  impression,  see  11  Harv.  Law  Rev.  551. 

The  rule  may  be  tiius  expressed,  "  once  a  sovereign,  always  a  sovereign,"  at  least 
for  anything  done  while  and  in  tiie  capacity  of  a  sovereign.  See  Hutch  v.  Bacz,  1876, 
7  Hun,  59G,  cited  ante  in  UnJerhill  v.  Hernandez,  1895,  26  U.  S.  Appeals,  573,  578; 
Duke  of  lirunswick  v.  King  of  Ilanorer,  1848,  2  H.  L.  Cas.  1-16  cited  677-678  of 
same  case.  —  Ed. 


CHAP.  II  ]  VAVASSEUR    V.    KRUPP.  183 

the  injunction  might  be  dissolved,  and  that  the  ]\Iikado  might  be  at 
liberty  to  take  possession,  and  remove,  out  of  the  jurisdiction  of  the 
court,  the  shells  in  question,  the  property  of  his  Imperial  Majesty.^ 

James,  L.  J.,  Brett,  L.  J.,  and  Cotton,  L.  J.,  concurred,  each  deliver- 
ing an  opinion. 

The  following  is  that  of  Brett,  L.  J. : — "  It  does  not  seem  to  me 
that  in  this  case  there  is  any  fact  whatever  in  dispute. 

"  These  shells  were  made  by  Krupp  at  Essen.  That  was  no  in- 
fringement of  the  plaintiff's  patent.  In  Germany  they  were  sold  to 
the  Mikado  and  paid  for  by  the  agents  of  the  Mikado.  None  of 
these  facts  are  in  dispute ;  and  this  purchase  and  sale  was  a  perfectly 
lawful  purchase  and  sale.  The  Mikado  had  three  ships  of  war  build- 
ing in  this  country,  and  he  desired  that  these  shells  should  be  sent 
to  this  country  and  put  on  board  these  ships.  They  were  sent  to 
this  country  by  the  order  and  by  the  authority  of  the  Mikado,  through 
Ahrens  &  Co.  They  were  brought  into  this  country,  and  they  were 
deposited  on  a  wharf.  The  plaintiff  then  finding  these  shells  in  this 
countr}'',  and  finding,  as  he  alleges,  that  thej^  were  made  according  to 
the  process  of  his  patent,  asserts  that  the  bringing  them  into  this 
country  by  Ahrens  &  Co.  is  an  infringement  of  his  patent  by  them ; 
and  thereupon  he  brings  an  action  against  Ahrens  &  Co.,  for  the  in- 
fringement. In  that  action  he  claims  an  injunction  against  Ahrens 
&  Co.,  and  it  may  be  that  he  claims  an  order  from  the  court  to  destroy 
those  shells  because  he  says  they  are  an  infringement  of  his  patent. 
In  the  course  of  that  suit  an  injunction  is  obtained  against  Ahrens  & 
Co.,  and  against  others,  which  injunction  in  terms  forbids  them  from 
delivering  these  shells,  which  with  other  things  are  in  their  pos- 
session, to  the  ships  of  the  Mikado,  and  in  fact  forbids  them  from 
sending  the  shells  to  Japan.  To  this  action  the  Mikado  was  no 
party,  but  he  or  his  agents  here  come  forward  and  claim  to  have  the 
deUvery  and  possession  of  these  shells.  The  defendants  in  the 
action  are  not  unwilling  to  give  the  shells  to  the  Mikado,  but  they 
say,  '  If  we  do  so,  it  may  be  said  that  we  have  broken  the  injunction, 
and  we  may  therefore  be  liable  to  certain  penalties.'  It  seems  to  me 
beyond  dispute  that  this  was  the  purpose  for  which  the  Mikado 
came  in  and  desired  to  be  made  a  party  to  the  suit,  and  the  Master 
of  the  Rolls  thus  describes  the  purpose.  [His  Lordship  then  read 
the  judgment  of  the  Master  of  the  Rolls.]  Now  it  is  said  that  in  the 
first  place  there  is  a  dispute  whether  these  shells  are  the  property  of 
the  Mikado.  It  is  argued  that  if  he  were  a  private  individual,  then, 
although  he  has  purchased  these  shells  and  paid  for  them,  yet,  inas- 

1  Short  statement  substituted  for  tliat  of  reporter.  —  Ed. 


184  TERETTORIAL    jrEISDICTION.  [PART  I. 

much  as  there  has  been  an  infringement  of  the  patent,  the  property 
is  not  in  liim,  because  the  court  may  order  the  shells  to  be  destroyed. 
Is  that  argument  good  or  not?  To  my  mind  it  is  utterly  fallacious. 
The  patent  law  has  nothing  to  do  with  the  property.  Tlie  facts  here 
are  undisputed  that  Krupp  made  them  with  his  own  materials  in 
Germany,  where  he  had  a  right  to  make  them ;  that  he  entered  into 
a  contract  to  sell  specific  shells  to  the  Mikado ;  that  that  contract  Avas 
performed,  and  that  the  shells  were  paid  for,  and  that  they  were 
delivered  in  Germany  to  the  Mikado's  agent.  Well,  unless  the 
patent  law  prevents  the  property  from  passing,  nobody  can  doubt 
that  the  property  passed  to  the  Mikado.  Therefore  the  dispute  is 
not  upon  facts,  but  upon  a  false  theory  of  law,  that  the  patent  law 
prevented  the  property  from  passing.  I  am  clearly  of  opinion  that 
the  patent  law  did  not  prevent  the  property  from  passing.  The 
goods  were  the  ]3roperty  of  the  Mikado.  They  were  his  property  ao  a 
sovereign ;  they  were  the  property  of  his  country ;  and  therefore  he 
is  in  the  position  of  a  foreign  sovereign  having  property  here. 

"  Whether  the  fact  of  Ahrens  &  Co.  bringing  these  goods  hito 
England  under  these  circumstances,  and  with  this  intention,  was 
an  infringement  of  the  patent,  I  decline  to  consider.  I  shall  assume 
for  this  purpose  that  it  was  an  infringement,  and  that  we  have  in  this 
country  property  of  the  Mikado  wdiich  infringes  the  patent.  If  it  is 
an  infringement  of  the  patent  by  the  Mikado  you  cannot  sue  him  for 
that  infringement.  If  it  is  an  infringement  by  tlie  agents,  you  may 
sue  the  agents  for  that  infringement,  but  then  it  is  the  agents  Avhom 
you  sue.  The  injunction  is  against  the  agents,  the  Mikado  being  then 
no  party  to  the  action,  and  not  being  forbidden  to  do  anything.  He 
then  comes  here  as  a  sovereign,  and  requires  the  delivery  of  his  own 
goods.  His  onlj'  diflSculty  is  the  injunction  against  the  agents,  and 
for  the  purpose  of  enabling  the  court  to  make  an  order,  he  what  is 
called  '  submits  himself  to  the  jurisdiction  of  the  court.'  I  think  the 
interpretation  put  by  the  Master  of  the  Rolls  upon  the  order  then 
made  is  right,  and  that  it  was  only  an  order  that  the  Mikado  might 
be  made  a  defendant  for  the  purpose  of  enabling  the  court  to  make 
the  order  which  the  court  has  made.  He  now  says  '  I  know  not, 
and  I  care  not,  whether  my  agents  have  infringed  your  patent  law. 
I  have  property  in  the  country,  which  property  is  my  own.  I 
demand  that  it  shall  be  delivered  to  me,  and  I  make  myself  a  defendant 
in  your  court  merely  for  the  purpose  of  your  modifying  the  order 
which  you  have  made,  so  that  my  agents  may  not  be  injured  in  con- 
sequence of  their  delivering  to  me  my  own  property.' 

"And  the  only  order  that  the  Master  of  the  Rolls  has  made  is  that 
these    goods   may  be    deUvered  up  to  the    Mikado;  the  meaning 


CHAr.  IT.]  VAVASSEUR    V.    KRUPP.  185 

of  which  is  that  the  mere  fact  of  the  Mikado  taking  these  shells 
away  shall  not  be  considered  as  against  Ahrens  &  Co,  an  infringement 
of  the  injunction.  That  is  the  whole  effect  of  this  order.  The  .Alikado 
has  a  perfect  right  to  have  these  goods  ;  no  court  in  this  country  can 
properly  prevent  him  from  having  goods  which  are  the  public  prop- 
erty of  his  own  country.  Therefore  it  seems  to  me  that  this  order 
which  is  really  made  for  the  benefit  of  Ahrens  &  Co.,  was  an  order 
rightly  made,  and  that  this  appeal  cannot  be  sustained." 

In  regard  to  the  point  of  submission  to  the  jurisdiction,  Cottox,  L. 
J.,  said : — "  It  is  said  that  although  under  ordinary  circumstances 
there  is  no  jurisdiction  as  against  a  foreign  sovereign,  yet  that  in 
this  particular  case  there  is  jurisdiction  in  consequence  of  the 
Mikado  having  come  in  and  obtained  the  order  of  the  lltli  of  May.  It 
is  said  that  a  sovereign  suing  submits  himself  to  the  court  as  an 
ordinary  plaintiff,  and  that  the  Mikado,  in  consequence  of  having 
obtained  this  order  and  acted  upon  it,  puts  himself  in  the  position 
of  an  ordinary  plaintiff.  In  the  first  place,  there  is  this  fallacy  :  the 
Mikado  is  not  now  in  any  way  suing  in  the  ordinary  sense  of 
the  word,  nor  has  he  come  to  the  court  to  establish  as  against  an 
adverse  claim  his  title  to  the  property,  Avhich  is  really  what  is  meant 
by  a  foreign  sovereign  coming  here  to  sue  to  establish  his  rights.  He 
is  simply  coming,  and  saying,  '  The  order  of  the  court,  possibly  in- 
advertently, interferes  with  my  sovereign  rights.  To  prevent  any 
question  as  to  the  defendants'  conmiitting  a  breach  of  the  injunction 
by  allowing  me  to  remove  the  property,  make  an  order  that  they  be 
at  liberty,  notwithstanding  the  injunction,  to  hand  them  over  to  me! 

"  So  that,  in  my  opinion,  the  very  foundation  for  the  suggestion 
fails. 

"  But  again,  even  if  the  Mikado  had  brought  himself  into  court  as 
an  ordinary  defendant,  that,  in  my  opinion,  would  not  give  the  court 
jurisdiction  as  ag.iinst  the  subject-matter,  namely,  jurisdiction  to  in- 
terfere with  the  public  property  of  Japan,  which  is  represented  here 
by  the  Mikado.  But  when  one  comes  to  look  at  the  form  of  the  order, 
the  Mikado  does  not  by  it  cg>me  in  as  an  ordinary  defendant.  By  it 
he  simply  says  '  I  wish  to  bring  before  the  court  the  facts  :  that  these 
are  my  property,  that  the  defendants  were  not  constructing  them 
under  a  contract  for  me,  or  using  them  nnder  a  contract  with  me, 
I  wish  to  show  that  they  are  my  property.  I  wish  to  apply  for 
liberty  to  remove  them  as  the  public  properly  of  the  state  of  Japan, 
and  for  that  purpose,  if  necessary,  I  ask  to  come  in.' 

"  In  my  opinion,  the  order  taken  fairly  must  be  read  with  reference 
to  the  purpose  for  which  the  Mikado  applied,  and  that  being  so,  al- 
though possibly  the  form  is  not  very  hapi)y,  it  is  like  a  conditional 


186  TERRITORIAL   JURISDICTION.  [PART  T. 

appearance  entered  where  a  defendant  who  considers  himself  improp- 
erly served  with  any  proceeding,  has  entered  a  conditional  appearance, 
in  order  to  contest  the  questions,  which  he  could  not  do  without  an 
appearance  of  some  sort.  It  cannot,  in  my  opinion,  be  said  that  the 
order  puts  the  Mikado  in  the  position  of  a  plaintiff  or  of  a  person 
who  is  made  simpHciter  a  defendant.  He  came  in  for  the  particular 
purpose  of  raising  this  question,  and  the  form  of  tlie  order,  in  my 
opinion,  ought  not  in  any  Avay  to  prejudice  the  rights  which  he  would 
have  had  independently  of  tliat  order." 

James,  L.  J. : — "  This  appeal  is  dismissed  with  costs."  ^ 


JOSEPH   D.    BEEES  v.   THE   STATE   OF  ARKANSAS. 

Supreme  Court  of  the  United  States,   1857. 

(20  Howard,  527.) 

Mr.  Chief  Justice  Taxey  delivered  the  opinion  of  the  court. '^ 
This  was  an  action  of  covenant,  brought  in  the  Circuit  Court  for 
Pulaski  County,  in  the  State  of  Arkansas,  to  recover  the  interest  due 
on  sundr}^  bonds  issued  by  the  State,  and  which  the  State  had  failed 
to  pay  according  to  its  contract. 

The  constitution  of  the  State  provides,  that  "the  General  Assembly 
shall  direct  by  law  in  u^hat  courts  and  in  what  manner  suits  may  be 
coramenced  against  the  State."  And  in  pursuance  of  this  pro^nsion, 
a  law  was  accordingly  passed;  and  it  is  admitted  that  the  present 
suit  was  brought  in  the  proper  court,  and  in  the  manner  authorized 
by  that  law. 

1  In  Manning  v.  Nicaragua,  1857,  14  How.  Pr,  517,  it  was  held  that  although 
sovereigns,  or  sovereign  states  cannot  be  sued  in  the  courts  of  another  state  or 
niition  for  tlie  purpose  of  enforcinfj  any  remedy  against  them,  j'et  a  state  may  be 
made  defendant  in  an  action  for  the  purpose  of  giving  it  an  opportunity  to  appear, 
thus  enabling  a  court  to  decide  more  intelligently  and  equitably,  in  relation  to 
demands  which  are  sought  to  be  enforced  against  other  defendants ;  tliat  states  as 
well  as  individuals  are  the  best  judges  of  what  affects  their  own  dignity  and  advan- 
tage, and  it  may  be  safely  left  to  their  sovereign  option  to  determine  whether  they 
will  take  part  or  not  in  a  judicial  controversy  — Ed. 

2  Only  the  opinion  of  the  court  is  given,  and  of  this  the  last  paragraph  is  omitted. 
—  Ed. 


CHAP.  II.]  BEERS   V.    THE   STATE   OF   ARKANSAS.  187 

The  suit  was  instituted  in  the  Circuit  Court  on  the  21st  of  Novem- 
ber, 1854.  And  after  it  was  brought,  and  while  it  was  pending  in 
the  Circuit  Court,  the  Legislature  passed  an  act,  which  was  approved 
on  the  7th  of  December,  1854,  which  provided,  "that  in  every  case  in 
which  suits  or  any  proceedings  had  been  instituted  to  enforce  the 
collection  of  any  bond  or  bonds  issued  by  the  State,  or  the  interest 
thereon,  before  any  judgment  or  decree  should  be  rendered,  the  bonds 
should  be  produced  and  filed  in  the  office  of  the  clerk,  and  not  with- 
drawn until  final  determination  of  the  suit  or  proceedings,  and  full 
payment  of  the  bonds  and  all  interest  thereon;  and  might  then  be 
withdrawn,  cancelled,  and  filed  with  the  State  treasurer,  by  order  of 
the  court,  but  not  otherwise."  And  the  act  further  provided,  that 
in  every  case  in  which  any  such  suit  or  proceeding  had  been  or  might 
be  instituted,  the  court  should,  at  the  first  term  after  the  commence- 
ment of  the  suit  or  proceeding,  whether  at  law  or  in  equity,  or 
whether  by  original  or  cross  bill,  require  the  original  bond  or  bonds 
to  be  produced  and  filed;  and  if  that  were  not  done,  and  the  bonds 
filed  and  left  to  remain  filed,  the  court  should,  on  the  same  day,  dis- 
miss the  suit,  proceeding,  or  cross-bill. 

Afterwards,  on  the  25th  of  June,  1855,  the  State  appeared  to  the 
suit,  by  its  attorney,  and,  without  pleading  to  or  answering  the 
declaration  of  the  plaintiff,  moved  the  court  to  require  iiim  to  file 
immediately  in  open  court  the  bonds  on  which  the  suit  Avas  brought, 
according  to  the  act  of  Assembly  above  mentioned;  and  if  the  same 
were  not  filed,  that  the  suit  be  dismissed. 

Upon  this  motion,  after  argument  by  counsel,  the  court  passed  an 
order  directing  the  plaintiff  to  produce  and  file  in  court,  forthwith, 
the  bonds  mentioned  and  described  in  the  declaration.  But  he 
refused  to  file  them,  and  thereupon  the  court  adjudged  that  the  suit 
be  dismissed,  with  costs. 

This  judgment  was  afterwards  affirmed  in  the  Supreme  Court  of  the 
State,  and  this  writ  of  error  is  brought  upon  the  last-mentioned 
judgment. 

The  error  assigned  here  is,  that  the  act  of  Dec.  7,  1854,  impaired 
the  obligations  of  the  contracts  between  the  State  and  the  plaintiff  in 
error,  evidenced  by  and  contained  in  each  of  the  said  bonds,  and  the 
indorsement  thereon,  and  was  therefore  null  and  void,  under  the 
Constitution  of  the  United  States. 

The  objection  taken  to  the  validity  of  the  act  of  Assembly  cannot 
be  maintained.  It  is  an  act  to  regulate  the  proceedings  and  limit  the 
jurisdiction  of  its  own  courts  in  suits  where  the  State  is  a  party 
defendant,  and  nothing  more. 

It  is   an  established  principle   of  jurisprudence   in  all   civilized 


188  TERRITORIAL   JCRISDICTIOX.  [PAKT  I. 

nations  that  the  sovereign  cannot  be  sued  in  its  own  courts,  or  in 
any  other,  without  its  consent  and  permission;  but  it  may,  if  it 
thinks  proper,  waive  this  privilege,  and  permit  itself  to  be  made 
defendant  in  a  suit  by  individuals,  or  by  another  state.  And  as  this 
permission  is  altogether  voluntary  on  the  part  of  the  sovereignty, 
it  follows  that  it  may  prescribe  the  terms  and  conditions  on  which  it 
consents  to  be  sued,  and  the  manner  in  which  the  suit  shall  be  con- 
ducted, and  may  withdraw  its  consent  whenever  it  may  suppose  that 
justice  to  the  public  requires  it. 

Arkansas,  by  its  Constitution,  so  far  waived  the  privilege  of 
sovereignty  as  to  authorize  suits  to  be  instituted  against  it  in  its  own 
courts,  and  delegated  to  its  General  Assembly  the  power  of  directing 
in  what  courts,  and  in  what  manner,  the  suit  might  be  commenced. 
And  if  the  law  of  18.54  had  been  passed  before  the  suit  was  instituted, 
we  do  not  understand  that  any  objection  would  have  been  made  to  it. 
The  objection  is  that  it  was  passed  after  this  suit  was  instituted,  and 
contained  regulations  with  which  the  plaintiff  could  not  conveniently 
comply.  But  the  prior  law  was  not  a  contract.  It  was  an  ordinary 
act  of  legislation,  prescribing  the  conditions  upon  which  the  State 
consented  to  waive  the  privilege  of  sovereignty.  It  contained  no 
stipulation  that  these  regulations  should  not  be  modified  afterwards, 
if,  upon  experience,  it  was  found  that  further  provisions  were  neces- 
sary to  protect  the  public  interest;  and  no  such  contract  can  be  im- 
plied from  the  law,  nor  can  this  court  inquire  whether  the  law 
operated  hardly  or  unjastly  upon  the  parties  whose  suits  were  then 
pending.  That  was  a  question  for  the  consideration  of  the  Legisla- 
ture. They  might  have  repealed  the  prior  law  altogether,  and  put  an 
end  to  the  jurisdiction  of  their  courts  in  suits  against  the  State,  if 
they  had  thought  proper  to  do  so,  or  prescribe  new  conditions  upon 
which  the  suits  might  still  be  allowed  to  proceed.  In  exercising  this 
latter  power,  the  State  violated  no  contract  with  the  parties;  it 
merely  regulated  the  proceedings  in  its  own  courts,  and  limited  the 
jurisdiction  it  had  before  conferred  in  suits  wlien  the  State  consented 
to  be  a  party  defendant. 

Nor  has  the  State  court,  in  the  judgment  brought  here  for  review, 
decided  anything  but  a  question  of  jurisdiction.  It  has  given  no  deci- 
sion in  relation  to  the  validit}'  of  the  contract  on  which  the  suit  is 
brought,  nor  the  obligations  it  created,  or  the  rights  of  parties  under 
it.  It  has  decided,  merely,  that  it  has  no  right  under  the  laws  of  the 
State  to  try  these  questions,  unless  the  bonds  given  by  the  State  are 
filed.  The  plaintiff  refusfed  to  tile  them  pursuant  to  the  order  of 
the  court,  and  the  case  was  thereupon  dismissed,  for  want  of  juris- 
diction in  the  court  to  proceed  further  in  the  suit.     There  is  evi- 


CHAP.  II.]  HEATHFIELD   V.   CHILTON".  189 

dently  nothing  in  the  decision,  nor  in  the  act  of  Assembly  under 
which  it  was  made,  which  in  any  degree  impairs  the  obligation  of  the 
contract,  and  nothing  which  will  authorize  this  court  to  reverse  the 

judgment  of  the  State  court. 

The  writ  of  error  must  therefore  be  dismissed,  for  want  of  jurisdic- 
tion in  this  court.* 


Section  8.  —  Immunities  of  Diplomatic  Agents. 


HEATHFIELD  v.    CHILTOX 
Court  of  King's  Bench,  1767. 

(4  Burrow,  2015.) 

On  showing  cause  why  the  defendant  should  not  be  discharged  out 
of  the  custody  of  the  marshal  (upon  7  Ann.  c.  12)  as  a  domestic  ser- 
vant to  Paul  Pierre  Russell,  minister  from  the  Prince  Bishop  of 
Liege  — he  swore  himself  to  be  bo7ia  fide  English  secretary  to  him; 
and  to  have  been  bona  fide  hired  by  him  as  such ;  and  to  have  bona 
fide  received  wages  as  they  became  due,  at  the  rate  of  £30  per  annum. 

1  See  tlie  very  valuable  note  to  tliis  case  in  Lawyer's  edition  of  Sup.  Ct.  Eeports,  2d 
ed.,  in  whicli  the  learning  on  this  subject  is  wellnigli  exliausted.  "  This  principle  of 
immunity  from  suit,"  it  is  there  said,  "  applies  to  every  sovereign  power,  whether  the 
form  of  government  is  monarchical  or  republican.  It  is  essential  to  the  common 
defence  and  general  welfare.  Briggs  v.  The  Light  Boats,  11  Allen,  162;  The  Siren,  7 
Wall.  152 ;  U.  S.  v.  Lee,  106  U.  S.  196.  And  but  for  the  protection  which  it  affords 
the  Government  would  be  unable  to  perform  the  various  duties  for  which  it  was 
created.  Nicholas  v.  U.  S.,  7  Wall.  122,  126."  See,  also,  an  instructive  note  in 
15  Harv.  Law  Rev.  59.  In  the  United  States  this  immunity  from  suit  is,  however, 
subject  to  the  constitutional  provision  by  which  States  in  certain  cases  are  made 
suable  (Art.  IIL  sect.  2).  This  is  the  familiar  and  elementary  doctrine  of  the  Supreme 
Court  on  this  subject.  A  recent  statement  of  it  follows  :  "  It  is  a  fundamental  prin- 
ciple of  public  law,  affirmed  by  a  long  series  of  decisions  of  this  court,  .  .  .  that  no 
suit  can  be  maintained  against  the  United  States  or  against  their  property,  in  any  court, 
without  express  authority  of  Congress,  147  U.  S.  512.  See,  also,  Belintp  v.  Schild,  161 
U.  S.  10.  The  United  States,  by  various  acts  of  Congress,  have  consented  to  he  sued 
in  their  own  courts  in  certain  classes  of  cases;  but  they  have  never  consented  lo  be 
sued  in  tlie  courts  of  a  State  in  any  case.  Neither  the  Secretary  of  War  nor  the 
Attorney-General,  nor  any  subordinate  of  eitlier,  has  been  authorized  to  waive  the 
exemption  of  the  United  States  from  judicial  process,  or  to  submit  the  United  States, 
or  tiieir  property,  to  the  jurisdiction  of  the  court  in  a  suit  brought  against  their  officers. 
Case  V.  Terrfill,  11  Wall.  199,  202;  Carr  v.  U.  S.,  98  U.  S.  4:]o,  4:08;  U.  S.  v.  f.ee,  1(16 
U.  S.  190,  205."     (Mr.  Justice  Gray  in  Stanlei/  v.  Schwalby,  1895,  162  U.  S.  270.)  -  Ku. 


190  TEREITORTAL   JTJIIISDICTIOK.  [PART  T. 

Both  tlie  minister  himself  and  the  relation  of  this  man  to  him  were 
objected  to. 

But  Chilton's  own  affidavit  was  positive,  as  to  the  service,  and  that 
it  was  real  and  not  colorable ;  and  it  was  confirmed  by  a  Mr.  Chamber- 
layne,  who  called  himself  Secretary.  He  also  swore  that  he  was  not 
an  object  of  the  bankrupt  laws.  He  had  been  house-steward  to  Lord 
Northington.  No  certificate  was  produced,  under  the  hand  and  seal 
of  the  minister;  though  the  present  application  was  made  (as  the 
attorney  alleged)  on  the  part  of  the  minister;  nor  was  it  sufficiently 
sworn  that  the  defendant  was  in  the  service  of  the  minister,  at  the 
time  when  he  was  arrested. 

Lord  Mansfield. — 'The  privileges  of  public  ministers  and  their 
retinue  depend  upon  the  law  of  nations;  which  is  part  of  the  com- 
mon law  of  England.  And  the  act  of  Parliament  of  7  Ann.  c.  12  did 
not  intend  to  alter,  nor  can  alter  the  law  of  nations.  His  lordship 
recited  the  history  of  that  act,  and  the  occasion  of  it,  and  referred 
to  the  annals  of  that  time.  He  said  there  is  not  one  of  the  provi- 
sions in  that  act  which  is  not  warranted  by  the  law  of  nations. 

The  law  of  nations  will  be  carried  as  far  in  England  as  anywhere, 
because  the  Crown  can  do  no  particular  favors,  affecting  the  rights  of 
suitors,  in  compliment  to  public  ministers,  or  to  satisfy  their  points 
of  honor. 

The  law  of  nations,  though  it  be  liberal,  yet  does  not  give  protec- 
tions to  screen  persons  who  are  not  bona  fide  servants  to  public  min- 
isters, but  only  make  use  of  that  pretence  in  order  to  prevent  their 
being  liable  to  pay  their  just  debts. 

The  law  of  nations  does  not  take  in  consuls,  or  agents  of  commerce; 
though  received  as  such  by  the  courts  to  which  they  are  employed. 
This  was  determined  in  Barbuit's  Case  in  Cane,  which  was  solemnly 
argued  before  and  determined  by  Lord  Talbot  on  considering  and 
well-weighing  Barbeyrac,  Binkershoek,  Grotius,  Wincquefort,  and 
all  the  foreign  authorities  (for  there  is  little  said  by  our  own 
writers  on  this  subject).  In  that  case  several  curious  questions  were 
debated. 

If  I  did  not  think  there  was  enough  in  the  present  c'ase,  already 
appearing  to  the  covirt,  to  enable  us  to  form  an  opinion,  I  should 
desire  to  know  in  what  manner  this  minister  was  accredited.  Cer- 
tainly he  is  not  an  ambassador,  which  is  the  first  rank.  Envoy, 
indeed,  is  a  second  class;  but  he  is  not  shown  to  be  even  an  envoy. 
He  is  called  "minister,"  'tis  true,  but  minister  (alone)  is  an  equivo- 
cal term. 

I  find  this  is  not  an  application  by  the  attorney-general  by  the 
direction  and  at  the  expense  of  the  Crown.     That,  indeed,  would  have 


CHAP,  n.]  HEATHFIELD   V.   CHILTON.  l9l 

shown  that  the  Crown  thought  this  person  entitled  to  the  character 
of  a  public  minister.  It  now  remains  uncertain  what  his  proper 
character  is. 

But  supposing  liim  to  be  a  minister  of  such  a  kind  as  entitles  him 
to  privilege;  yet  I  think  this  is  not  a  case  of  privilege  by  the  law  of 
nations,  for  the  defendant  does  not  appear  to  have  been  in  the  service 
of  the  minister  at  the  time  of  the  arrest. 

A  public  minister  shall  not  take  a  man  from  the  custody  of  the 
law;  though  the  process  of  the  law  shall  not  take  his  menial  servant 
out  of  his  service. 

Here  it  is  not  sworn  when  the  defendant  came  into  the  service. 
And  upon  the  manner  of  swearing  here  used,  the  court  must  take  it 
"that  he  was  not  in  the  minister's  service  at  the  time  of  the  arrest." 

Mr.  Justice  Yates  was  not  in  court. 

Mr.  Justice  Ashtox  concurred.  The  rule  laid  down  by  Lord 
Maxsfield  is  a  very  right  one.  The  process  of  the  law  shall  not, 
indeed,  take  a  person  out  of  the  service  of  a  public  minister;  but,  on 
the  other  hand,  a  public  minister  cannot  take  a  person  out  of  the 
custody  of  the  law.  If  a  man  has  no  such  privilege  at  the  time  of 
his  being  arrested,  no  subsequent  privilege  can  be  given  him,  by  being 
afterwards  taken  into  the  service  of  a  public  minister. 

Therefore,  as  it  does  not  appear  here  that  the  defendant  was  then 
in  the  service,  he  cannot  be  entitled  to  this  privilege. 

This  is  a  true  and  right  principle,  and  the  establishing  it  may  pre- 
vent many  of  these  applications. 

Mr.  Justice  Hewitt  concurred,  and  repeated  and  confirmed  the 
principle;  and  agreed  that  it  does  not  here  appear  that  the  defend- 
ant was,  at  the  time  of  the  arrest,  in  the  service  of  this  minister. 

Lord  Mansfield  took  occasion  to  observe  that  the  registering  the 
name  of  the  defendant  in  the  Secretary  of  State's  office,  and  transmit- 
ting it  to  the  sheriff's  office  (mentioned  in  the  fifth  section),  relates 
only  to  the  bailiff  who  arrested  him  and  is  no  condition  precedent  to 
the  being  entitled  to  the  privilege  of  a  public  minister's  servant.  In 
this,  ]\Ir.  Justice  Asiiton  also  concurred. 

Per  cur,  unanimously. 

Eule  discharged.^ 

1  See  the  early  case  of  Cross  v.  Talbot,  10  Geo.  1,  8  Mod.  288  ;  and  see  §  1,  ante,  for 
Triquet  v.  Bath,  1704,  .3  Burr.  1478.  The  following  are  famous  cases  from  the  te.Kt- 
books,  cited  incidentally,  but  not  decided  in  the  law  reports  :  A.  Cases  of  criminal  juris- 
diction :  Case  of  Leslie,  Bishop  of  Ross,  1571,  to  the  effect  that  the  ambassadur  of  a 
deposed  sovereign  is  entitled  to  diplomatic  immunity,  2  Ward's  Law  of  Nations, 
486;  Mendoza's  Case,  1584,  holding  that  an  ambassador  siiould  not  be  punished, 
but  may    be  sent   out    of    the  country,  ib.,  522;  Case  of  Da  Sa,  IGuo,  in  \Yliich  the 


192  TERMTOEIAL    JURISDICTION.  [PAET  I. 

PAEKINSOX  V.   POTTER. 

Queen's  Bexch,   1S85. 
(Law  Reports,  16  Queen's  Bench  Div.,  152.) 

Wills,  J.^  The  plaintiff  in  this  case  sues  the  defendant  for  paro- 
chial rates  which  he  has  paid,  and  which  he  contends  he  is  entitled 
to  be  repaid  by  virtue  of  tlie  defendant's  covenant  with  him.  The 
plaintiff  is  the  owner  and  the  defendant  the  lessee  of  a  house,  in 
respect  of  the  occupation  of  which  the  rates  were  assessed.  The 
defendant  has  assigned  or  sublet  to  Senhor  Pinto  de  Basto,  who  is 
said  to  be  an  attache  of  the  Portuguese  embassy  and  who  has  on  that 
ground  refused  to  pay  them.  Under  a  local  act  the  landlord  is  liable 
in  such  a  case;  and  the  first  question  that  arises  is  whether  the  per- 
iSon  in  question  was  entitled  to  the  immunity  which  he  has  claimed. 

The  evidence  that  Senhor  Pinto  de  Basto  is  an  attache  to  the 
Portuguese  legation  is  slight,  but  I  think  there  is  evidence  of  the 
fact.  It  seems  that  he  is  known  at  the  embassy  as  an  attache,  and 
is  there  spoken  to  and  spoken  of  as  an  attache,  and  treated  as  an 
attache.  It  seems  that  there  is  no  salary  attached  to  the  post,  but 
that  the  government  of  his  country  can  exact  from  him  certain  small 
services;  and  that  he  has  in  fact  been  employed  by  the  minister  occa- 
sionally to  write  letters  and  to  take  messages,  and  to  help  in  the 
translation  of  documents  connected  with  the  diplomatic  work  of 
the  embassy,  and  that  he  goes  often  to  the  embassy  and  places  him- 
self at  the  disposal  of  the  ambassador. 

brotlier  of  <in  ambassador  and  a  member  of  liis  suite  was  executed  for  sedition  and 
murder,  ib.  537;  Gyllenborg's  Case,  1717,  deciding  that  an  ambassador  who  conspires 
to  overtlirow  the  government  to  wiiicli  he  is  accredited  may  be  arrested  and  liis 
papers  seized,  ib.  548;  Prince  Cellamare's  Case,  1718,  wliere  an  ambassador  was 
arrested  and  conducted  across  tlie  frontiers  into  iiis  own  country  for  conspiring  against 
tlie  accrediting  state,  1  Martens'  Causes  Celebres,  149.  B.  Civil  jurisdiction  :  Case  of 
Peter  tlie  Great's  Ambassador,  1708,  §  1,  atite,  and  1  Black.  Com.  Cli.  VIII;  Case  of 
Baron  de  Wrech,  1772,  in  which  the  Frencli  Government  witlilield  a  minister's  pass- 
ports until  his  debts  were  paid,  2  Martens'  Causes  Ce'lebrcs,  282;  Wheaton's  Case, 
18:W,  Dana's  Wheaton,  307-318  ;  5  Martens'  C.  C.  295 ;  Bj/me  v.  Ilerran,  1863,  1  Daly 
(N.  Y.),  314,  346;  Dillon's  Case,  1854,  holding  that  a  treaty  stipulation  exempting 
consul  from  appearing  as  witness  in  court,  yields  to  constitutionnl  privilege  of  com- 
pulsory process  to  compel  presence  of  witnesses,  1  Wharton's  Diucst,  665;  (/"  Re 
Dillon,  1854,  7  Sawyer,  5G1,  same  case,  7  Fed.  Cases,  10);  Case  of  Dubois,  1856, 
recognizing  that  a  foreign  minister  cannot  be  compelled  to  appear  in  court  as  a 
witness,  Sen.  Ex.  Doc.  No.  21,  34th  Cong.,  3d  Sess.  —  Ed. 

1  The  statement  of  the  case  and  the  opinion  of  Mathews,  J.,  are  omitted.  In  addi- 
tion to  cases  cited  by  Wills,  J.,  see  Hopkins  v.  De  Roheck,  1789, .3  T.  K.  79.  —Ed. 


CHAP.  11.]  PARKINSON    V.    POTTER.  193 

I  think  this  is  evidence  upon  which  the  county  court  judge  might 
fairly  find  that  he  was  an  attache.  If  it  be  once  ascertained  that  he 
was  a  person  treated  at  the  embassy  as  a  member  of  the  legation, 
possessing  in  diplomatic  matters  more  or  less  of  the  confidence  of 
the  minister  and  employed  from  time  to  time  by  him  in  the  work  of 
the  legation,  I  think  it  is  not  for  us  to  measure  the  quantum  of  the 
services  either  required  from  or  rendered  by  him.  If  there  were  any 
reason  to  suppose  that  the  so-called  appointment  was  a  sham,  as  in  a 
case  reported  in  the  books,  in  which  a  Christian  clergyman  was  sup- 
posed to  be  domestic  chaplain  to  the  ambassador  of  the  Emperor  of 
]\[orocco;  if  he  were  one  of  an  inordinate  number  of  idlers  nominally 
attached  to  the  embassy  and  not  wanted  there,  or  there  were  any  other 
circumstances  from  which  it  might  be  gathered  that  the  appointment 
was  not  bona  fide,  the  case  would  be  otherwise.  But  I  can  Very  well 
understand  that,  seeing  the  close  connection  between  diplomatic  busi- 
ness and  some  of  the  matters  which  it  falls  to  a  consul-general  to 
transact,  there  may  be  a  convenience  in  clothing  the  consul-general 
with  the  additional  character  of  an  attach^,  which  may  explain  and 
justify  his  appointment  in  that  capacity,  although  his  services  in  a 
diplomatic  character  may  be  only  slight  and  occasional. 

An  attache  is  a  well-known  term  in  the  diplomatic  service.  He 
forms  part  of  the  regular  suite  of  an  ambassador.  He  is  classed  by 
Calvo,  the  author  of  an  elaborate  French  work  on  international  law, 
published  in  1880,  and  written  with  admirable  clearness  and  with  a 
copiousness  of  historical  illustration  which  makes  his  treatise  most 
interesting  as  well  as  instructive,  along  with  "Conseillers  et  Secre- 
taires," and  he  gives  a  common  description  of  the  functions  of  all 
three  classes  of  officers  as  consisting  in  supporting  the  minister  in 
all  things,  in  preparing  and  forwarding  official  despatches,  in  carry- 
ing out  communications  by  word  of  mouth  with  the  public  adminis- 
trative authorities  of  the  country  to  which  the  minister  is  accredited, 
in  classifying  and  keeping  charge  of  the  archives  of  the  mission,  in 
ciphering  and  deciphering  despatches,  in  making  minutes  of  the 
letters  which  the  minister  may  have  to  write,  and  similar  services; 
and  he  treats  the  attache  as  undoubtedly  entitled  to  all  the  immuni- 
ties accorded  to  the  suite  of  an  ambassador:  Calvo,  International 
Law,  Vol.  I.,  p.  486. 

One  of  these  immunities,  insisted  upon  by  all  writers  on  interna- 
tional law  with  whose  works  I  have  any  acquaintance,  as  beyond 
question,  is  the  complete  exemption  from  the  jurisdiction  of  the 
courts  of  the  country  to  which  the  minister  is  accredited.  They 
are  all,  so  far  as  I  have  been  able  to  ascertain,  equally  clear  in 
the  opinion  that  the  exemption  extends  to  the  family  and  suite  of 

13 


194  TERRITORIAL   JURISDICTION.  [PART  I. 

the  ambassadoi'.  "This  immunity,"  says  Wheaton,  "extends  not 
only  to  the  person  of  the  minister  but  to  his  family  and  suite, 
secretaries  of  legation  and  other  secretaries,  his  servants,  movable 
effects,  and  the  house  in  which  he  resides  " :  International  Law,  Ed. 
1863,  p.  394.  Again,  "the  wife  and  family,  servants,  and  suite  of 
the  miuister  participate  in  the  inviolability  attached  to  his  public 
character":  Ibid.  397.  For  these  propositions  he  quotes  Grotius, 
Bynkershoek,  Vattel,  and  Martens,  and  he  treats  these  privileges  as 
essential  to  the  dignity  of  his  sovereign  and  to  the  duties  he  is  bound 
to  perform.  jSIavtens  says,  "  The  exemption  from  civil  jurisdiction, 
contentious  and  voluntary  alike,  is  general,  and  belongs  to  ministers 
throughout  the  whole  extent  of  the  country  in  which  they  reside. 
They  enjoy  it  for  themselves,  for  their  suite,  and  for  their  effects,  in 
as  far,  be  it  always  understood,  as  they  do  not  travel  out  of  their 
diplomatic  character  " :  Guide  Diplomatique,  Vol.  I.,  p.  81.  To  the 
same  effect  is  the  statement  by  Calvo:  "The  staff  of  the  mission, 
the  vrife  and  family  of  the  diplomatic  agent,  participate  in  these  pre- 
rogatives," and  amongst  the  prerogatives  there  enumerated  is  that 
"he  is  exempt  from  the  local  jurisdiction  of  the  country  into  which 
he  is  sent;  no  legal  process  can  be  brought  against  him  before  the 
tribunals  of  the  place  of  his  residence":  Vol.  I.,  p.  381.  "The  per- 
son who  enj-n's  exterritoriality,"  says  the  German  Bluntschli,  "can- 
not be  subjected  to  any  impost  "  :  International  Law  Codified,  art. 
138.  "The  family,  the  staff,  the  suite,  and  the  servants  of  him  who 
has  the  right  of  exterritoriality,"  says  the  same  writer,  "enjoy  the 
same  immunity  as  himself.  His  suite  have  the  right  but  indirectly 
and  on  account  of  him  to  whom  they  are  attached  " :  Art.  145.  "  Such 
persons  are  exempt  from  jurisdiction":  Art.  147.  "The  immunity  of 
the  person  exempted  extends  to  the  members  of  his  suite  " :  Heff ter. 
International  Law  of  Europe,  sec.  42,  VI.  These  are  amongst  the  most 
recent  French  and  German  authorities  upon  the  subject,  and  are  for 
the  most  part  subsequent  to  those  cited  in  the  elaborate  arguments  in 
Tdijlor  v.  Best,  14  C.  B.  487,  and  Magdalena  Steam  Navigation  Co. 
V.  Martin,  2  E.  &  E.  94;  and,  so  far  as  I  have  been  able  to  ascertain, 
no  writer  on  international  law  appears  to  entertain  any  doubt  upon 
this  point. 

It  was  urged  for  the  defendant  that  there  are  English  authorities 
conflicting  with  these  propositions.  I  do  not  think  it  is  so,  if  they 
are  carefully  considered.  It  was  said  tliat  in  FisJier  v.  Begrez,  1  C. 
&  M.  117,  it  was  held  that  the  goods  of  a  chorister  to  the  Bavarian 
embassy  were  not  privileged  from  execution  under  a  fi.  fa. ;  but  in 
that  case  the  sheriff  had  not  executed  the_/?.  fa.;  nor  was  the  protec- 
tion of  the  court  claimed   by  the  ambassador  or  his  servant.     The 


CHAP,  n.]  PAIiKINbON   V.    POTTER.  195 

sheriff  claimed  to  be  exempt  from  the  duty  of  levying.  The  defend- 
ant had  allowed  himself  to  be  sued  and  the  action  to  proceed  to 
judgment  and  execution  without  claiming  the  privilege,  and  the 
sheriff  applied  to  the  court  upon  affidavits  which  were  quite  insuffi- 
cient to  show,  and  failed  to  satisfy  the  court,  that  there  was  any 
foundation  for  the  allegation  that  the  defendant  was  then  in  the 
service  of  the  Bavarian  minister. 

In  Xo cello  v.  Toogood,  1  I>.  &  C.  554,  it  was  held  that  the  goods 
of  a  chorister  in  the  service  of  the  Portuguese  ambassador  were  not 
privileged  from  distress  for  poor-rates.  But  in  that  case  the  servant 
was  carrying  on  the  business  of  a  lodging-house  keeper  in  the  house 
in  question.  IMost  writers  on  international  law  say  that  with  regard 
to  an  ambassador  even,  although  he  does  not  lose  his  privileges  as  an 
ambassador  by  engaging  in  trade  in  the  country  to  which  he  is  accred- 
ited, yet  the  immunity  of  his  goods  does  not  extend  to  protect  his 
stock  in  trade.  The  ratio  decidendi  in  Novella  v.  Toor/ood,  supra,  is 
that  the  plaintiff  Novello,  who  claimed  exemption  from  poor-rate,  was 
carrying  on  the  business  of  k  lodging-house  keeper  in  the  house  in 
question. 

An  exception  from  the  privilege  of  being  exempt  from  jurisdiction  is, 
by  the  statute  of  7  Ann.,  c.  12,  sec.  5,  specifically  applied  to  the  case 
of  an  ambassador's  servant  carrying  on  a  trade;  and  in  Novella  v. 
Toogood,  supra,  Abbott,  G.  J.,  so  far  from  hinting  a  doubt  as  to  the 
general  principle  that  the  immunity  from  process  extends  to  the  ser- 
vant of  the  ambassador,  observes,  "I  do  not  say  that  he  may  not  have 
a  house  fit  and  convenient  for  his  situation  as  the  servant  of  an  am- 
bassador, nor  that  the  furniture  in  such  a  house  will  not  be  privi- 
leged."  It  may  be  added  that  ISTovello  was  a  British-born  subject, 
and  that  most  writers  on  international  law  are  of  opinion  that  a 
subject  of  the  country  in  which  the  ambassador  is  resident  remains 
subject  to  the  law  of  his  country,  and  that  in  respect  of  him  the 
immunity  which  would  be  afforded  to  a  foreigner  cannot  be  claimed. 
Poitier  v.  Croza,  1  Wm.  Bl.  48,  was  cited,  but  in  that  case  the  court 
was  convinced  that  the  alleged  service  was  a  sham. 

Reliance  was  placed  on  Taylor  v.  Best,  14  C.  B.  487,  490.  But  the 
substance  of  the  decision  in  that  case  was  that,  where  the  ambassador 
had  voluntarily  appeared  as  one  of  several  defendants,  and  defended 
the  action  up  to  judgment,  he  had  waived  his  privilege,  and  it  was 
too  late  for  him  to  apply  to  have  all  further  proceedings  stayed  or  to 
have  his  own  name  struck  out  of  the  record.  It  is  true  that  Maule, 
J.,  expressed  doubts  as  to  whether  an  ambassador  in  England  could 
claim  a  complete  immunity  from  all  English  process.  But  that  doubt 
was  removed  and  proi^ounced  to  be  ill-founded  in  the  considered  and 


196  TERRITORIAL  JURISDICTION.  [PART  I. 

elaborate  judgment  of  the  court  of  Queen's  Bench  in  Magdalena 
Steam  Naviyatlon  Co.  v.  Martin,  2  E.  &  E.  94,  in  which  it  was  held 
that  the  minister  of  a  foreign  country  cannot  be  sued  against  his  will 
in  this  country,  although  the  action  may  arise  out  of  commercial  trans- 
actions carried  on  by  him  here.  There  is,  therefore,  nothing  in  the 
current  of  English  authorities  to  contravene  the  doctrine  of  exemp- 
tion from  process  —  a  part  of  the  privileges  which  constitute  the 
"exterritoriality"  of  foreign  jurists  —  as  laid  down  by  the  writers  on 
international  law:  and  there  is  nothing  in  the  circumstances  of  this 
case  to  prevent  its  application  to  Senhor  de  Basto.  He  is  not  carry- 
ing on  trade  nor  letting  lodgings;  and  the  house  in  question  is  simply 
the  private  residence  of  himself  and  his  family;  and  I  am  of  opinion 
that  he  was  not  liable  to  pay  the  rates  assessed  upon  him  in  respect 
of  his  occupation. 

It  follows  that  under  s.  190  of  the  local  act  the  plaintiff,  as  the 
landlord  of  his  house,  was  liable  to  pay  them;  and,  having  paid 
them,  it  is  clear  th?it,  under  the  covenant  sued  upon,  the  defendant  is 
bound  to  recoup  him.  The  judgment  of  the  county  court  judge  was 
right,  therefore,  and  the  aj^peal  must  be  dismissed  with  costs. 

Appeal  dismissed.^ 

1  In  Macartney  v.  Garhutt,  1890,  24  Q.  B.  D.  3G8,  it  was  held  that  this  immunity 
extended  to  a  diplomatic  agent,  altliough  a  subject  of  tlie  receiving  county,  unless  the 
iinnuinity  were  specifically  limited  before  receiving  such  agent. 

Where,  however,  a  British  subject  in  debt  was  appointed  honor?ry  attache  of  the 
Persian  embassy  for  the  purpose  of  escaping  bankruptcy,  diplomatic  immunity  from 
suit  was  disallowed.     {In  Re  Cluete,  1891,  65  L.  T.  102,  7  Times  K.,  565.) 

In  other  words,  for  the  immunity  to  attach,  the  claimant  must  be  actually  and  bona 
fid"  in  tiie  diplomatic  service,  either  as  agent  or  servant;  if  the  claim  be  colorable 
merely  it  will  be  rejected.  On  this  point  the  autiiorities  are  numerous  and  unanimous: 
Lockwood  V.  Dr.  Coj/sgarne,  1705,  3  Burr.  1676;  Fisher  v.  Begrez,  1832,  1  C.  &  M.  117; 
same  case,  2  C.  &  M.  240,  and  cases  cited  in  argument  of  case  as  reported  in  1  C.  & 
M.  While  the  diplomatic  agent  may  waive  immunity  of  his  servant,  he  cannot  in 
the  United  States  waive  his  own  immunity,  as  tiiis  is  the  privilege  of  his  State,  not 
a  personal  privilege.     (U.  S.  v.  Benner,  1830,  Bald.  234.) 

In  Guitean's  Trial  (1881),  1  Wharton's  Digest,  669,  Senor  Camacho,  minister  from 
Venezuela,  who  was  present  at  President  Garfield's  assassination,  was  called  as  a  wit- 
ness for  the  prosecution. 

Before  he  was  sworn  the  following  statement  was  made  by  the  district  attorney  : 

"  If  your  honor  please,  before  the  gentleman  is  sworn,  I  desire  to  state,  or  rather  I 
think  it  due  to  the  witness  to  state,  that  he  is  the  minister  from  Venezuela  to  this 
Government,  and  entitled  under  the  law  governing  diplomatic  relations  to  be  relieved 
from  service  by  sul)p(rna  or  sworn  as  a  witness  in  any  case. 

"  Under  the  instructions  of  his  government,  owing  to  the  friendship  of  that 
government  for  the  United  States,  and  the  great  respect  for  the  memory  of  the  man 
wlio  was  assassinated,  they  have  instructed  him  to  waive  his  rights  and  appear  as  a 
witness  in  tlie  case,  the  same  as  any  witness  who  is  a  citizen  of  this  country." 

/U..ymblira  v.  De  Longchamps,  1  Dallas,  110  (1784):  —  The  defendant  threatened  to 


CHAP,  n.]  IX   EE   BAIZ.  '    IQJ 

IN  KE  BAIZ. 

Supreme  Court  of  the  United  States,  1889o 

(135  Uniled  States,  403.) 

Mr.  Chief  Justice  Fuller  delivered  the  opinion  of  the  court. ^ 
The  judicial  power  of  the  United  States  extends  to  "all  cases  affect- 
ing ambassadors,  other  public  ministers,  and  consuls."     Const.   Art. 
Ill,  sec.  2. 

By  section  G87  of  the  Eevised  Statutes,  it  is  provided  that  the 
Supreme  Court  "shall  have  exclusively  all  such  jurisdiction  of  suits 
or  proceedings  against  ambassadors,  or  other  public  ministers,  or  their 
domestics,  or  domestic  servants,  as  a  court  of  law  can  have  consistently 

assault  the  Secretary  of  the  French  Legation,  the  threats  being  made  in  the  house  of 
the  French  minister.     The  defendant  was  fined  •'foOO  and  imprisoned  two  years. 

United  States  v.  Lidd/e,  2  Wash.  Circ.  Ct.  205  (1808) :—  Indictment  for  assault  and 
battery  on  a  member  of  the  Spanish  Legation.  The  law  is  the  same  whether  the 
attacked  is  a  private  party  or  an  ambassailor,  viz.,  if  the  ambassador  was  the  prior 
assaulting  party,  the  defendant  is  excused  for  his  subsequent  assault. 

The  law  of  nations  identifies  the  property'  of  the  foreign  minister,  attaclied  to  liis 
person  or  in  his  use,  with  his  person.  To  insult  tiiem  is  an  attack  on  tlie  minister,  and 
his  sovereign ;  but  to  constitute  an  offence  against  a  foreign  minister,  the  defendant 
must  have  known  tliat  tlie  house  attacked  was  the  domicile  of  a  minister,  for  other- 
wise it  is  only  an  offence  against  the  municipal  laws  of  the  state,  i\  S.  v.  Hand,  1810, 
2  Wash.  C.  C.  435. 

United  States  v.  Ortega,  4  Wash.  Circ.  Ct.  531  (1825) ;  —  Indictnient  for  an  assault 
on  the  Spanish  Charge'  d'Affaires.  Cites  Liddle's  case  and  affirms  it:  "A  foreign 
minister,  by  committing  the  first  assault,  so  far  loses  his  privilege,  that  he  cannot 
complain  of  an  infraction  of  the  law  of  nations ;  if,  in  his  turn,  he  should  be  assaulted 
by  the  party  aggrieved." 

Nitcliencoff's  Case,  1865, 10  Solic.  Law  Journal,  56 :  "  The  French  Court  of  Cassation 
has  quashed  the  appeal  of  Nitcheiicoff,  the  Russian  sentenced  to  imprisonment  for  life 
for  a  murderous  attack  upon  M.  de  Balsh,  in  the  house  of  the  Russian  Ambassador  in 
Paris.  It  will  bo  remembered  that  this  case  gave  rise  to  a  diplomatic  correspondence, 
the  Russian  Government  having  disputed  the  right  of  the  French  courts  to  try  the 
murderer,  and  claimed  a  right  to  have  him  given  up  for  trial  in  Russia.  The  court 
laid  down  the  law  that  "the  fiction  of  the  law  of  nations,  according  to  which  the 
house  of  an  ambassador  is  reputed  to  be  a  continuation  of  the  territory  of  his 
sovereign,  only  protects  diplomatic  agents  and  their  servants,  and  does  not  exclude 
the  jurisdiction  of  French  courts,  in  case  of  a  crime  committed  in  such  a  locality  by  a 
person  not  belonging  to  the  embassy,  even  although  he  is  a  subject  of  the  nation  from 
which  the  ambassador  is  accredited." 

On  the  subject  generally  see  the  excellent  note  to  Dana's  Wheaton,  303-307  ; 
5  Op.  Att.  Gen.  76;  U.  S.  Rev.  St.  1875,  §§  4062-4005. —  Ed. 

1  Only  so  much  of  the  opinion  is  given  as  relates  to  the  claim  of  diplomatic  im- 
munity. —  Ed. 


198  TERRITORIAL   JURISDICTION.  [PART  I. 

with  the  law  of  nations  ;  and  original,  but  not  exclusive,  jurisdiction 
of  all  suits  brought  by  ambassadors,  or  other  public  ministers,  or  in 
wliich  a  consul  or  a  vice-consul  is  a  party."  By  section  563  it  is  pro- 
vided that  "  the  District  Courts  shall  have  jurisdiction  as  follows  :  *  *  * 
Seventeenth.  Of  all  suits  against  consuls  or  vice-consuls,"  except  for 
certain  offences.  The  petitioner  has  been,  since  July,  1887,  the  con- 
sul general  of  the  Republic  of  Guatemala,  and  therefore  the  District 
Court  had  jurisdiction  of  the  action  in  question,  unless  he  belonged  to 
the  class  of  offloial  personages  subject  to  suits  or  proceedings  only  in 
this  court.  This  he  insists  was  the  fact,  and  avers  in  his  petition,  as 
he  did  in  his  plea  in  the  District  Court,  that  at  the  time  of  the  com- 
mencement of  the  action  and  until  and  including  the  lOtli  day  of  July, 
3889,  which  was  the  eighth  day  after  service  of  process  upon  him,  he 
was  "  the  acting  minister  and  sole  representative  of  said  republic  [of 
Guatemala]  in  the  United  States,"  and  for  that  reason  came  within 
the  words  of  section  687,  "  other  public  ministers." 

The  exemption  asserted  ceased  on  the  lOth  of  July,  1889,  and  on  the 
17th  of  July  the  petitioner  gave  a  general  notice  of  appearance  in  the 
action,  but  did  not  set  up  the  want  of  jurisdiction  until  the  25th  of 
the  following  September.  Suit  could  have  been  brought  in  that  court 
against  him  on  the  11th  day  of  July,  but  as  in  his  view  this  could  not 
liave  been  done  on  the  29th  of  June  or  the  2d  of  July,  he  contends 
that  the  District  Court  should  be  ordered  to  dismiss  the  suit,  though 
it  could  at  once  be  recommenced  tlierein.  But  it  is  said  that  the 
appearance  did  not  waive  the  right  to  be  sued  in  this  court  rather  than 
in  the  District  Court,  because  that  was  the  privilege  of  the  country  or 
government  which  he  represented.  Witliout  pausing  to  inquire  how 
far  this  is  a  correct  application  of  the  international  privilege  of  not 
being  sued  at  all,  its  assertion,  even  in  this  restricted  form,  serves  to 
emphasize  petitioner's  contention  that  he  was  at  that  time  the  minister 
or  diplomatic  agent  of  the  republics  of  Guatemala,  Salvador  and  Hon- 
duras in  the  United  States,  intrusted  by  virtue  of  his  office  with 
authority  to  represent  those  republics  in  their  negotiations  and  to 
vindicate  their  prerogatives.  Under  section  2,  Art.  II.,  of  the  Consti- 
tution, the  President  is  vested  with  power  to  "  appoint  ambassadors, 
otlier  public  ministers  and  consuls,"  and  by  section  3  it  is  provided 
that  '•  he  shall  receive  ambassadors  and  other  public  ministers.'' 

These  words  are  descriptive  of  a  class  existing  by  the  law  of  nations, 
and  apply  to  diplomatic  agents  whether  accredited  by  the  United 
States  to  a  foreign  power  or  by  a  foreign  power  to  the  United  States, 
and  the  words  are  so  used  in  section  2  of  Art.  III.  These  agents  may 
be  called  ambassadors,  envoys,  ministers,  commissioners,  charges 
d'affaires,  agents,   or   otherwise,  but   they  possess   iu  substance   the 


CHAP.  II.]  IN    RE   BAIZ.  199 

same  functions,  rights  and  privileges  as  agents  of  their  respective 
governments  for  tlie  transaction  of  its  diplomatic  business  abroad. 
Their  designations  are  chiefly  significant  in  the  relation  of  rank,  prec- 
edence or  dignity.     7  Opinions  Atty.  Gen.  (Gushing),  186. 

Hence,  when  in  subdivision  fifth  of  section  1074  of  the  Revised 
Statutes  we  find  "diplomatic  officer"  defined  as  including  "ambas- 
sadors, envoys  extraordinary,  ministers  plenipotentiary,  ministers 
resident,  commissioners,  charges  d'affaires,  agents  and  secretaries  of 
legation,  and  none  others,"  we  understand  that  to  express  the  view  of 
Congress  as  to  what  are  included  within  the  term  ''public  ministers," 
although  the  section  relates  to  diplomatic  officers  of  the  United  States. 

But  the  scope  of  the  words  "  public  ministers  "  is  defined  in  the 
legislation  embodied  in  Title  XLVIL,  "Foreign  Relations,"  Rev.  Stat., 
2d  Ed.  783.  Section  4062  provides  that  "  every  person  who  violates 
any  safe  conduct  or  passport  duly  obtained  and  issued  under  authority 
of  the  United  States  ;  or  who  assaults,  strikes,  wounds,  imprisons  or 
in  any  other  manner  offers  violence  to  the  person  of  a  public  minister, 
in  violation  of  the  law  of  nations,  shall  be  imprisoned  for  not  more 
than  three  years,  and  fined,  at  the  discretion  of  the  court."     Section 

4063  enacts  that  whenever  any  writ  or  process  is  sued  out  or  prosecuted 
by  any  person  in  any  court  of  the  United  States,  or  of  a  State,  or  by 
any  judge  or  justice,  whereby  the  person  of  any  public  minister  of 
any  foreign  prince  or  state,  authorized  and  received  as  such  by  the 
President,  or  any  domestic  or  domestic  servant  of  any  such  minister, 
is  arrested  or  imprisoned,  or  his  goods  or  chattels  are  distrained, 
seized  or  attached,  such  writ  or  process  shall  be  deemed  void.     Section 

4064  imposes  penalties  for  suing  out  any  writ  or  process  in  violation 
of  the  preceding  section ;  and  section  4065  says  that  the  two  preceding 
sections  shall  not  apply  to  any  case  where  the  person  against  whom 
the  process  is  issued  is  a  citizen  or  inhabitant  of  the  United  States 
"in  the  service  of  a  public  minister,"  and  process  is  founded  upon  a 
debt  contracted  before  he  entered  upon  such  service ;  nor  shall  the 
preceding  section  apply  to  any  case  where  the  person  against  whom 
the  process  is  issued  is  a  "  domestic  servant  of  a  public  minister," 
unless  the  name  of  the  servant  has  been  registered  and  posted  as 
therein  prescribed. 

Saction  4130,  which  is  the  last  section  of  the  title,  is  as  follows  : 
"  The  word  '  minister,'  when  used  in  this  title,  shall  be  understood  to 
mean  the  person  invested  with,  and  exercising,  the  principal  diplo- 
matic functions.  The  word  '  consul '  shall  be  understood  to  mean  any 
person  invested  by  the  United  States  with,  and  exercising,  the  func- 
tions of  consul  general,  vice-consul  general,  consul  or  vice-consul." 

Sections  4062,  4063,  4064  and  4065  were  originally  sections  25,  26, 


200  TERRITORIAL   JURISDICTION".  [PART  I. 

27  and  28  of  the  Crimes  Act  of  April  30,  1790,  Ch.  9,  1  Stat.  118;  and 
these  were  drawn  from  the  statute  7  Anne,  c.  12,  which  was  declaratory 
simply  of  the  law  of  nations,  which  Lord  Mansfield  observed,  in  Heath- 
field  V.  Chiton,  4  Burr,  2015,  2016,  the  act  did  not  intend  to  alter  and 
could  not  alter. 

In  that  case,  involving  the  discharge  of  the  defendant  from  custody, 
as  a  domestic  servant  to  the  minister  of  the  Prince  Bishop  of  Liege, 
Lord  Mansfield  said  ;  "  I  should  desire  to  know  in  what  manner  this 
minister  was  accredited  —  certainly,  he  is  not  an  ambassador,  which 
is  the  first  rank  —  envoy,  indeed,  is  a  second  class  ;  but  he  is  not 
shown  to  be  even  an  envoy.  He  is  called  '  minister,'  't  is  true  ;  but 
minister  (alone)  is  an  equivocal  term."  The  statute  of  Anne  was 
passed  in  consequence  of  the  arrest  of  an  ambassador  of  Peter  the 
Great  for  debt,  and  the  demand  by  the  Czar  that  the  sheriff  of  Middle- 
sex and  all  others  concerned  in  the  arrest  should  be  punished  with 
instant  death,  1  Bl.  Com.  254  ;  and  it  was  in  reference  to  this  that 
Lord  Ellenborough,  in  Viveash  v.  Becker,  3  M.  &  S.  284,  where  it  was 
held  that  a  resident  merchant  of  London,  who  is  appointed  and  acts 
as  consul  to  a  foreign  prince,  is  not  exempt  from  arrest  on  mesne 
process,  remarked:  "I  cannot  help  thinking  that  the  act  of  Parlia- 
ment, which  mentions  only  '  ambassadors  and  public  ministers,'  and 
which  was  passed  at  a  time  when  it  was  an  object  studiously  to  com- 
prehend all  kinds  of  public  ministers  entitled  to  these  privileges,  must 
be  considered  as  declaratory,  not  only  of  what  the  law  of  nations  is, 
but  of  the  extent  to  which  that  law  is  to  be  carried." 

Three  cases  are  cited  by  counsel  for  petitioner  arising  under  or  in- 
volving the  act  of  1790.  In  United  States  v.  Liddle,  2  Wash.  C.  C. 
205,  in  the  case  of  an  indictment  for  an  assault  and  battery  on  a  mem- 
ber of  a  foreign  legation,  it  was  held  that  the  certificate  of  the  Secre- 
tary' of  State,  dated  subsequently  to  the  assault  and  battery,  is  the 
best  evidence  to  prove  the  diplomatic  character  of  a  person  accredited 
as  a  minister  by  the  government  of  the  United  States.  The  certificate 
from  the  Secretary  of  State,  Mr.  Madison,  stated  that  "  when  Mr. 
Feronda  produced  to  the  President  his  credentials  as  charge  des  affaires 
of  Spain,  he  also  introduced  De  Lima,  as  a  gentleman  attached  to  the 
legation  and  performing  the  duties  o-f  secretary  of  legation,"  and  the 
certificate  was  held  to  be  the  best  evidence  to  prove  that  Feronda  was 
received  and  accredited,  and  that  at  the  same  time  De  Lima  was  pre- 
sented and  received  as  secretary  attached  to  the  legation.  In  United 
States  V.  Ortega,  4  Wasli.  C.  C.  531,  there  was  produced  in  court  an 
officnal  letter  from  the  S[)anish  minister  to  the  Secretary  of  State, 
informing  him  that  he  had  appointed  Mr.  Salmon  charge  d'affaires;  a 
letter  from  the  minister  to  Mr.  Salmon  ;  a  letter  from  the  Secretary 


CHAP.  II.]  IN   RE   BAIZ.  201 

of  State  acklressed  to  the  Spanish  ministei',  recognizing  the  character 
of  Mr.  S-almon  ;  two  letters  from  the  Secretary  of  State  addressed  to 
Mr.  Salmon  as  charge  d'affaires  ;  and  the  deposition  of  the  chief  clerk 
of  the  State  Department  that  Mr.  Salmon  was  recognized  by  the  Presi- 
dent as  cliarge  d'affaires,  and  was  accredited  by  the  Secretary  of  State. 
In  United  States  v.  Benupr,  Baldwin,  234,  the  court  was  furnished  with 
a  certificate  from  the  Secretary  of  State  that  the  Danish  minister  had 
by  letter  informed  the  department  that  ]\Ir.  Brandis  had  arrived  in 
this  country  in  the  character  of  attache  to  the  legation,  and  that  said 
Brandis  had  accordingly,  since  that  date,  been  recognized  by  the 
department  as  attached  to  the  legation  in  that  character. 

These  cases  clearly  indicate  the  nature  of  the  evidence  proper  to 
establish  whether  a  person  is  a  public  minister  within  the  meaning  of 
the  Constitution  and  the  laws,  and  that  the  inquiry  before  us  may  be 
answered  by  such  evidence,  if  adduced. 

Was  Consul  General  Baiz  a  person  "  invested  with  and  exercising 
the  principal  diplomatic  functions,"  within  section  4130,  or  a  "diplo- 
matic officer,"  within  section  1674  ?  His  counsel  claim  in  their  motion 
that  he  was  "the  acting  minister  or  charge  d'affaires  of  the  Republics 
of  Guatemala,  Salvador  and  Honduras  in  the  United  States,"  and  so 
recognized  by  the  State  Department,  and  that  he  exercised  diplomatic 
functions  as  such,  and  therefore  was  a  public  minister,  within  the 
statute. 

By  the  Congresses  of  Vienna  and  Aix-la-Chapelle  four  distinct  kinds 
of  representation  were  recognized,  of  which  the  fourth  comprised 
charges  d'affaires,  who  are  appointed  by  the  minister  of  foreign  affairs, 
and  not  as  the  others,  nominally  or  actually  by  the  sovereign.  Under 
the  regulations  of  this  Government  the  representatives  of  the  United 
States  have  heretofore  been  ranked  in  three  grades,  the  third  being 
charges  d'affaires.  Secretaries  of  legation  act  ex  officio  as  charges 
d'affaires  ad  interim,  and  in  the  absence  of  the  secretary  of  legation 
the  Secretary  of  State  may  designate  any  competent  person  to  act  ad 
interim,  in  which  case  he  is  specifically  accredited  by  letter  to  the 
minister  for  foreign  affairs. 

Wheaton  says:  "Charges  d'affaires,  accredited  to  the  ministers  of 
foreign  affairs  of  the  court  at  which  they  reside,  are  either  charges 
d'affaires  ad  hoc,  who  are  originally  sent  and  accredited  by  their  gov- 
ernments, or  charges  d'affaires  ad  interim,  substituted  in  the  place  of 
the  minister  of  their  respective  nations  during  his  absence."  Elements 
Int.  Law  (8th  Ed.),  §  215. 

Ch.  de  Martens  explains  that  "  charges  d'affaires  ad  hoc  on  perma- 
nent mission  are  accredited  by  letters  transmitted  to  the  minister  of 
foreign  affairs.     Charges  d'affaires  ad  interim  are  presented  as  such 


202  TERRITORIAL  JURIbDICTION.  [PART  I. 

by  the  minister  of  the  first  or  second  class  when  he  is  about  to  leave 
his  position  temporarily  or  permanently."  Guide  Diplomatique,  Vol.  I, 
p.  61,  §  16. 

"They,"  observes  Twiss  in  his  Law  of  Nations,  192,  "are  orally 
invested  with  the  charge  of  the  embassy  or  legation  by  the  ambassador 
or  minister  himself,  to  be  exercised  during  his  absence  from  the  seat 
of  his  mission.  They  are  accordingly  announced  in  this  character  by 
him  before  his  departure  to  the  minister  of  foreign  affairs  of  the  court 
to  which  he  is  accredited." 

Diplomatic  duties  are  sometimes  imposed  upon  consuls,  but  only  in 
virtue  of  the  right  of  a  government  to  designate  those  who  shall 
represent  it  in  the  conduct  of  luternational  affairs,  1  Calvo,  Droit  Int. 
586,  2d  Ed.,  Paris,  1870,  and  among  the  numerous  authorities  on  inter- 
national laws,  cited  and  quoted  from  by  petitioner's  counsel,  the  atti- 
tude of  consuls,  on  whom  this  function  is  occasionally  conferred,  is 
perhaps  as  well  put  by  De  Clercq  and  De  Vallat  as  by  any,  as  follows : 

"  There  remains  a  last  consideration  to  notice,  that  of  a  consul  who 
is  charged  for  the  time  being  with  the  management  of  the  affairs  of 
the  diplomatic  post;  he  is  accredited  in  this  case  in  his  diplomatic 
capacity,  either  by  a  letter  of  the  minister  of  foreign  affairs  of  France 
to  the  minister  of  foreign  affairs  of  the  country  where  he  is  about  to 
reside,  or  by  a  letter  of  the  diplomatic  agent  whose  place  he  is  about 
to  fill,  or  finally  by  a  personal  presentation  of  this  agent  to  the  min- 
ister of  foreign  affairs  of  the  country."  Guide  Pratique  des  Consulats, 
Vol.  I.,  p.  93. 

That  it  may  sometimes  happen  that  consuls  are  so  charged  is  rec- 
ognized by  section  1738  of  the  Revised  Statutes,  which  provides : 

"  No  consular  officer  shall  exercise  diplomatic  functions,  or  hold  any 
diplomatic  correspondence  or  relation  on  the  part  of  the  United  States, 
in,  with,  or  to  the  government,  or  country  to  which  he  is  appointed, 
or  any  other  country  or  government  when  there  is  in  such  country  any 
officer  of  the  United  States  authorized  to  perform  diplomatic  functions 
therein  ;  nor  in  any  case,  unless  expressly  authorized  by  the  President 
so  to  do." 

But  in  such  case  their  consular  character  is  necessarily  subordinated 
to  their  superior  diplomatic  character.  "  A  consul,"  observed  Mr, 
Justice  Story,  in  TJte  Anne,  3  Wheat.  435,  445,  "  though  a  public 
agent,  is  supposed  to  be  clothed  with  authority  only  for  commercial 
purposes.  He  has  an  undoubted  right  to  interpose  claims  for  the 
restitution  of  property  belonging  to  the  subjects  of  his  own  country ; 
but  he  is  not  considered  as  a  minister,  or  diplomatic  agent  of  iiis 
sovereign,  intrusted  by  virtue  of  his  office,  witli  authority  to  represent 
him  in  his  negotiations  with  foreign  states,  or  to  vindicate  his  prerog- 


CHAP.  II.]  IX    RE    BAIZ.  203 

atives.  There  is  no  doubt  that  his  sovereign  may  specially  intrust  Ijim 
with  such  authority;  but  in  such  case  his  diplomatic  character  is 
superadded  to  his  ordinary  powers,  and  ought  to  be  recognized  by  the 
government  within  whose  dominions  he  assumes  to  exercise  it." 

When  a  consul  is  ai)pointed  charge  d'affaires,  he  has  a  double 
political  capacity  ;  but  though  invested  with  full  diplomatic  privileges, 
he  becomes  so  invested  as  charge  d'affaires  and  not  as  consul,  and 
though  authorized  as  consul  to  communicate  directly  with  the  govern- 
ment in  which  he  resides,  he  does  not  thereby  obtain  the  diphjmatic 
privileges  of  a  minister.     Atty.  Gen.  Gushing,  7  Opinions,  342,  345. 

This  is  illustrated  b}'  the  ruling  of  ]\Ir.  Secretary  Blaine,  April  12, 
1881,  that  the  Consul  General  of  a  foreign  government  was  not  to  be 
regarded  as  entitled  to  the  immunities  accompanying  the  possession  of 
diplomatic  character,  because  he  was  also  accredited  as  the  "  political 
agent"  so-called  of  that  government,  since  he  was  not  recognized  as 
performing  any  acts  as  such,  which  he  was  not  equally  competent  to 
perform  as  Consul  General.  1  Whart.  Dig.  Int.  Law,  2d  Ed.,  ch.  4, 
§  88,  p.  624. 

We  are  of  opinion  that  Mr.  Baiz  was  not,  at  the  time  of  the  com- 
mencement of  the  suit  in  question,  charge  d'affaires  ad  interim  of 
Guatemala,  or  invested  with  and  exercising  the  principal  diplomatic 
functions,  or  in  any  view  a  "  diplomatic  officer."  He  was  not  a  pub- 
lic minister  within  the  intent  and  meaning  of  §  687  ;  and  the  District 
Court  had  jurisdiction. 

Mr.  Baiz  was  a  citizen  of  the  United  States  and  a  resident  of  the 
city  of  New  York.  In  many  countries  it  is  a  state  maxim  that  one  of 
its  own  subjects  or  citizens  is  not  to  be  received  as  a  foreign  diplo- 
matic agent,  and  a  refusal  to  receive,  based  on  that  objection,  is  always 
regarded  as  reasonable.  The  expediency  of  avoiding  a  possible  con- 
flict between  his  privileges  as  such  and  his  obligations  as  a  subject  or 
citizen,  is  considered  reason  enough  in  itself.  Wheaton,  8th  Ed.,  §  210 ; 
2  Twiss,  Law  of  Nations,  276,  §  186;  2  Phill.  Int.  Law,  171.  Even 
an  appointment  as  consul  of  a  native  of  the  place  where  consular  ser- 
vice is  required,  is,  according  to  Phillimore,  "  perhaps,  rightfully  pro- 
nounced, by  a  considerable  authority,  to  be  objectionable  in  principle." 
Vol.  II.,  p.  291,  citing  De  ]\Iartens  &  De  Cussey,  Eecueil  des  Traites, 
Index  Explicatif,  p.  xxx..  Tit.  "  Consuls." 

"  Other  powers,"  says  Calvo,  Vol.  I.,  p.  559,  2d  Ed.,  "  admit  without 
difficulty  their  own  citizens  as  representatives  of  foreign  states,  but 
imposing  on  them  the  obligation  of  amenability  to  the  local  laws  as  to 
their  persons  and  property.  These  conditions,  which,  nevertheless, 
ought  never  to  go  so  far  as  to  modify  or  alter  the  representative  char- 
acter, ought  always  to  be  defined  before  or  at  the  time  of  receiving  the 


204  TERRITORIAL  JURISDICTION.  [PART  I. 

agent ;  for  otherwise,  the  latter  might  find  it  impossible  to  claim  the 
honors,  riglits  and  prerogatives  attached  to  his  employment.''  See 
also  HefEter,  3d  Fr.  Ed.,  387. 

In  the  United  States,  the  rule  is  expressed  by  ^Ir.  Secretary  Evarts, 
under  date  of  Sept.  19,  1879,  thus :  "  This  Government  objects  to 
receiving  a  citizen  of  the  United  States  as  a  diplomatic  representa- 
tive of  a  foreign  power.  Such  citizens,  however,  are  frequently  rec- 
ognized as  consular  ofiicers  of  other  nations,  and  this  policy  is  not 
known  to  have  hitherto  occasioned  any  inconvenience."  And  again, 
April  20,  1880,  while  waiving  the  obstacle  in  the  particular  instance, 
he  says:  "The  usage  of  diplomatic  intercourse  between  nations  is 
averse  to  the  acceptance,  in  the  representative  capacity,  of  a  person 
who,  while  native  born  in  the  country  which  sends  him,  has  yet  ac- 
quired lawful  status  as  a  citizen  by  naturalization  of  the  country  to 
which  he  is  sent."  1  Whartou  Dig.  Int.  Law,  2d  Ed.,  §  88a,  p.  628. 
Of  course  the  objection  would  not  exist  to  the  same  extent  in  the  case 
of  designation  for  special  purposes  or  temporarily,  but  it  is  one  purely 
for  the  receiving  government  to  insist  upon  or  waive  at  its  pleasure. 
The  presumption,  therefore,  would  ordinarily  be  against  'Mv.  Baiz's 
contention,  and,  as  matter  of  fact,  we  find  that  when,  in  1886,  he  was 
appointed  charge  d'affaires  of  the  Republic  of  Honduras  to  the  Govern- 
ment of  the  United  States,  Mr.  Secretary  Bayard  declined  receiving 
him  as  the  diplomatic  representative  of  the  government  of  that  coun- 
try, because  of  his  being  a  citizen  of  the  United  States,  and  advised 
him  that:  "  It  has  long  been  the  almost  uniform  practice  of  this  Gov- 
ernment to  decline  to  recognize  American  citizens  as  the  accredited 
diplomatic  representatives  of  foreign  powers.  The  statutory  and  juris- 
dictional immunities  and  the  customary  privileges  of  right  attaching 
to  the  office  of  a  foreign  minister  make  it  not  only  inconsistent,  but 
at  times  even  inconvenient,  that  a  citizen  of  this  country  should  enjoy 
so  anomalous  a  position."  And  in  a  subsequent  communication  ren- 
dered necessary  by  a  direct  question  of  Mr.  Baiz,  the  Secretary  informs 
him  "  that  it  is  not  the  purpose  of  the  departnient  to  regard  the  sub- 
stitutionary agency,  which  it  cheerfully  admits  in  your  case,  as  con- 
ferring upon  you  personally  any  diplomatic  status  whatever."  This 
correspondence  disposes  of  the  question  before  us.  The  objection 
which  existed  in  1886  to  the  reception  of  Mr.  Baiz  as  charge  d'affaires 
ad  hoc  or  ad  interim^  or  according  to  him  any  diplomatic  status  what- 
ever, whether  temporary  or  otherwise,  existed  in  1889  ;  and  it  is  out 
of  the  question  to  assume  that  the  State  Depai-tment  intended  to  con- 
cede the  diplomatic  status  between  January  16  and  July  10,  1889, 
upon  the  request  of  Senor  Lainfiesta  that  Consul  General  Baiz  might 
be  allowed  to  be  a  medium  of  communication  during  his  absence,  which 


CHAP.  II.]  IN  RE  BAIZ.  205 

it  had  refused  to  accord  to  the  Republic  of  Honduras  itself.  It  is 
evident  that  the  statement  of  the  Assistant  Secretary,  October  4,  1889, 
was  quite  correct,  that  "  the  business  of  the  legation  [of  Guatemala] 
was  conducted  by  Consul  General  Baiz,  but  without  diplomatic 
character." 

Regarding  the  matter  in  hand  as,  in  its  general  nature,  one  of 
delicacy  and  importance,  we  have  not  thought  it  desirable  to  discuss 
the  suggestions  of  counsel  in  relation  to  the  remedy,  but  have  pre- 
ferred to  examine  into  and  pass  upon  the  merits. 

We  ought  to  add  that  while  we  have  not  cared  to  dispose  of  this 
case  upon  the  mere  absence  of  technical  evidence,  we  do  not  assume 
to  sit  in  judgment  upon  the  decision  of  the  executive  in  reference  to 
the  public  character  of  a  person  claiming  to  be  a  foreign  minister,  and 
therefore  have  the  right  to  accept  the  certificate  of  the  State  Depart- 
ment that  a  party  is  or  is  not  a  privileged  person,  and  cannot  properly 
be  asked  to  proceed  upon  argumentative  or  collateral  proof. 

Our  conclusion  is,  as  already  stated,  that  the  District  Court  had 
jurisdiction,  and  we  accordingly  discharge  the  rule  and 

Deny  the  writs. ^ 

1  Until  recently  the  United  States  had  no  diplomatic  representatives  of  the  rank  of 
ambassadors.  The  right  to  appoint  such  was  conferred  by  act  of  Mch.  1,  1893  (27  St.  L. 
497).  "  Wiienever  the  President  shall  be  advised  that  any  foreign  government  is,  or 
is  about  to  be,  represented  in  the  United  States  by  an  ambassador  ...  he  is  author- 
ized, in  his  discretion,  to  direct  that  the  representative  of  United  States  to  such  gov- 
ernment shall  bear  the  same  designation.  Tliis  provision  sliall  in  nowise  affect  tlie 
duties,  powers,  or  salary  of  such  representative."  See  elaborate  opinions  by  C. 
Cusliing  in  7  Op.  Atty.  Gen.  186-229;  582-594. 

A  consul  is  a  commercial,  not  a  diplomatic  agent,  and  has  no  claim  under  interna- 
tional law  to  immunity  from  the  civil  or  criminal  jurisdiction  of  the  country  in  which 
he  is  stationed,  Barbuit's  Case,  1737,  Cas.  Temp.  Talbot,  231 ;  Clarke  v.  Cretico,  1808, 
1  Taunt.  lOG;  Viveash  v.  Becker,  1814,  .3  M.  &  S.  281 ;  Commonwealth  v.  Kosloff,  1816, 
5  Serg.  &  Rawle  (Pa.),  545.  "Consuls,"  said  Mr.  Justice  Swayne,  in  Coppell  v.  Hall, 
1868,  7  Wall.  542,  553,  "  are  approved  and  admitted  by  tlie  local  sovereign.  If  guilty 
of  illegal  or  improper  conduct,  the  exequatur  which  has  been  given  may  be  revoked, 
and  they  may  be  punished,  or  sent  out  of  the  country,  at  the  option  of  the  offended 
government.  In  civil  and  criminal  cases,  they  are  subject  to  the  local  law  in  tlie 
game  manner  with  other  foreign  residents  owing  a  temporary  allegiance  to  the  state 
(Dana's  Wheaton,  §  249  :  1  Kent's  Commentaries,  53).  A  trading  consul,  in  all  that 
concerns  his  trade,  is  liable  in  the  same  way  as  a  native  mercliant  (2  Piiillimore's 
International  Law,  ccli.)  Tlie  character  of  consul  does  not  give  an}' protection  to  that 
of  merchant  when  they  are  united  in  the  same  person.  [The  Indian  Chief,  3  C. 
Robinson,  27  ;  Arnold  v.  The  U.  S.  Insurance  Co.,  1  Johnson's  Cases,  363)."  See  also 
opinion  of  C.  Gushing,  8  Op.  Atty.  Gen.  169. 

American  consuls  are  forbidden  in  a  large  number  of  places  to  trade  (11  U.  S., 
St.  L.  c.  127,  p.  55,  §  5).  And  such  seems  also  to  be  the  modern  English  policy 
(Abdy's  Kent,  131,  note  1). 

While  consuls  are  and  always  have  been  liable  to  suit  in  the  United  States,  they, 


206  TERRITORIAL   JURISDICTION.  [PART  I. 

GEORGE   WILSON  v.   GUZMAN   BLANCO. 
Superior  Court  of  the  City  of  New  York,  1889. 

(56  New  York  Superior  Court,  582.) 

Appeal  from  an  order  of  the  special  term  vacating  the  judgment  in 
this  action  and  setting  aside  the  service  of  the  summons  therein  upon 
Guzman  Blanco. 

The  following  opinion  was  delivered  by  the  court  at  special  term : 

O'GoRMAN,  J.  Guzman  Blanco,  being  an  envoy  extraordinary  and 
minister  plenipotentiary,  duly  accredited  from  Venezuela  to  France, 
and  recognized  as  such  by  the  Government  of  the  United  States,  and 
while  in  the  City  of  New  York,  waiting  to  take  early  means  of  convey- 
ance from  this  city  to  France,  was  served  with  a  summons  in  this 
action.  Failing  to  make  any  appearance  in  the  action,  judgment  was 
recovered  against  him  for  the  sum  of  $2,194,536. 

A  motion  is  now  made  to  set  aside  the  judgment,  and  vacate  the 
service  of  summons  upon  him,  on  the  ground  that  he  was,  wlien  so 
served,  an  ambassador,  and  as  such,  not  amenable  to  any  civil  suit 
brought  against  him  in  this  city  or  State. 

It  is  conceded  for  the  purposes  of  this  motion  that  he  could  not 
lawfully  have  been  arrested,  while  tlius  in  the  City  of  New  York,  and 
this  concession  is  in  accordance  with  the  judgment  of  this  court  in 
Holhrook  V.  Henderson,  4  Sand.  Super.  Ct.  626.  The  court  there, 
however,  went  farther,  and  expressed  the  opinion  that  the  privilege 
of  an  ambassador  extended  to  immunity  against  all  eivll  suits  sought 
to  be  instituted  against  him  in  the  courts  of  the  country  to  which  he 
was  accredited,  as  well  as  in  those  of  a  friendly  country  through 
which  he  was  passing  on  his  way  to  the  scene  of  his  diplomatic 
labors,  and  to  this  privilege  the  learned  court  held  that  he  was  en- 
titled, as  representative  of  his  sovereign,  and  also  because  it  was 
necessary  for  his  free  and  unimpeded  exercise  of  his  diplomatic 
duties. 

This    opinion   of    the    Superior   Court   is    in    accord   with  tliat  of 

might  only  be  sued  in  tlie  Federal  courts,  act  of  1789.  (Rev.  St.  §  711,  cl.  8) ;  but 
this  clause  was  repealed  by  act  of  Congress,  Feb.  18,  1875,  18  St.  L.,  p.  318,  with  the 
result  that  State  and  F'ederal  courts  now  exercise  concurrent  jurisdiction  in  suits 
against  consuls  and  vice  consuls  as  appears  from  an  excellent  O[)inion  of  Mr.  Justice 
Harrison,  in  the  recent  case  of  Wilcox  v.  Luco,  1898,  118  Cal.  6-30.  In  a  note  to  this 
case  in  45  Lawyer's  Reports  Annotated,  570,  the  exemptions  and  privileges  of  consuls 
are  learnedly  treated.  —  Ed. 


CHAP.  II.]  GEOPvGE   WILSON   V.    GUZMAN   BLANCO.  207 

Wheatoii,  as  set  forth  in  his  book  on  the  Law  of  Nations,  in  which 
he  has  collected  and  condensed  the  views  of  numerous  jurists  of  rec- 
ognized authority  on  the  subject.  Wiieaton's  Law  of  Nations,  p.  240 
et  seq. 

This  rule  of  international  law  derives  support  from  the  legal  fic- 
tion that  an  ambassador  is  not  an  inhabitant  of  the  country  to  v/hich 
he  is  accredited,  but  of  the  country  of  his  origin  and  whose  sovereign 
he  represents,  and  within  whose  territory  he,  in  contemplation  of  law, 
always  abides. 

When,  therefore,  a  claim  is  made  against  him  in  the  country  to 
which  he  is  sent,  for  payment  of  a  debt  incurred  by  him,  the  creditor 
must  proceed  against  him  exactly  as  if  he  were  not  resident  there, 
and  as  if  he  had  not  contracted  the  debt  there,  and  as  if  he  had  no 
property  there,  in  his  quality  of  ambassador.  Wheaton's  Law  of 
Nations,  p.  242. 

If  he  has  contracted  debts,  and  has  no  real  property  in  the  country 
to  which  he  is  sent,  he  should  be  requested  to  make  payment,  and, 
in  case  of  refusal,  application  should  be  made  to  his  sovereign;  and  as 
a  necessary  consequence  of  this  rule  of  extraterritorial  residence,  he 
is  always  considered  as  retaining  his  original  domicil,  and  may  be 
proceeded  against  in  the  competent  court  of  his  own  country,  and 
he  cannot  set  up  the  plea  of  absence  in  the  service  of  the  State  as  a 
bar  to  a  suit  in  the  domestic  forum,  since  the  law  supposes  him  still 
to  be  present  there. 

From  these  views,  I  am  led  to  the  conclusion  that  the  service  made 
on  Guzman  Blanco  in  tliis  case,  and  the  judgment  entered  against 
him,  are  of  no  force  and  void. 

The  fact,  rather  suggested  than  positively  averred  in  the  complaint, 
that  he  was  connected  as  a  partner  in  a  mercantile  business  in  New 
York,  is  not  material. 

It  does  not  appear  that  the  cause  of  action  arose  out  of  that  mer- 
cantile relation,  or  business,  or  out  of  any  contract  or  transaction 
which  arose  in  the  State  of  New  York,   or  the  United  States. 

The  motion  to  vacate  the  judgnaent  against  Guzman  Blanco,  and  to 
set  aside  the  service  of  the  summons  upon  him,  is  granted,  with  ten 
dollars  costs. ^ 

1  The  arguments  of  counsel  on  rolicaring  are  omitted:  at  the  conclusion  of  these 
the  order  appealed  from  was  affirmed  in  the  following  sentence  :  "  Per  Curian).  —  Order 
affirmed  with  JJIO  costs,  for  the  reasons  assigned  hy  Judge  O'Gorman  for  granting 
tlie  motion." 

In  the  case  of  the  Xew  Chili  Gold  Mining  Co.  v.  Blanco  jj-  Another,  1888.  4  Times 
Law,  846,  the  court  took  time  to  consider  tlieir  judgment  and  delivered  it  in  favor  of 
the  defendants,  on  the  ground  tliat,  in  the  exercise  of  tlieir  judicial  discretion,  tiiey 
did  not  consider  it  right  to  allow  a  foreign  minister  (Blanco),  resident  at  a  foreign 


208  TERRITORIAL  JURISDICTION.  [PART  I. 


Section  9.    —  Immunities  of  Public  Ships. 


(a')   Shijys  of  War. 

THE  SCHOONER    "EXCHANGE"  v.  M'FADDON  &  OTHERS. 

Supreme  Coukt  of  the  United  States,  1812. 

(7    Cranch,  116.) 

Appeal  from  the  sentence  of  the  circuit  court  of  the  United  States 
for  the  district  of  Pennsylvania. 

Tlie  schooner  Exchange.,  owned  by  John  M'Faddon  and  William 
Greetham,  sailed  from  Baltimore,  October  27, 1809,  for  St.  Sebastians, 
in  Spain.  On  the  30tli  of  December,  1810,  she  was  seized  by  the 
order  of  Napoleon  Bonaparte ;  and  was  then  armed  and  commis- 
sioned as  a  public  vessel  of  the  French  government,  under  the  name 
of  Balaou.  On  a  voyage  to  the  West  Indies,  she  put  into  the  port 
of  Philadelphia,  in  July,  1811,  and  on  the  24th  of  August  was  libelled 
by  the  original  owners.  As  no  claimant  a^ipeared,  Mr.  Dallas,  the 
attorney  of  the  United  States  for  the  district  of  Pennsylvania  filed 
(at  the  suggestion  of  the  executive  department  of  the  United  States, 
it  is  believed)  a  suggestion  that  inasmuch  as  tliere  was  peace  between 
France  and  the  United  States,  the  public  vessels  of  the  former  may 
enter  into  the  ports  and  harbors  of  the  latter  and  depart  at  will 
without  seizure  or  detention  in  any  way. 

The  district  judge  dismissed  the  libel,  on  the  ground  that  a  public 
armed  vessel  of  a  foreign  power,  at  peace  with  the  United  States,  is 
not  subject  to  the  ordinary  judicial  tribunals  of  the  country,  so  far 
as  regards  the  question  of  title,  by  which  the  foreign  sovereign 
claims  to  hold  her. 

The  libellants  appealed  to  the  circuit  court,  where  the  sentence 

court  (France),  to  be  sued  in  the.courts  of  tliis  country,  at  all  events  on  a  cause  of 
action  not  arising  in  this  country.    The  case  was  however,  decided  on  anotlier  point. 

Tlie  immunity  of  a  diplomatic  agent  continues  for  a  reasonable  time  after  recall, 
Dupont  V.  Pkhon,  1805,  4  Dali.  321 ;  Torlade  v.  Dmrozo,  ISoO,  1  Miles,  Pa.  3(56;  Muswus 
Be:/  V.  Gadban,  1  Q  B.  533  (1894) ;  same  case  on  appeal,  2  Q.  B.  352  (18'.)4). 

The  authorities  on  this  question  are  collected  and  analyzed  in  a  note  to  U.  S.  v. 
Ortega,  182G,  11  Wheat.  4G7  as  reported  in  G  Lawyer's,  Co-operative  Ed.  522.  —  Ed. 


CHAP.  II.]       THE    SCHOONP]R    "EXCHANGE"    V.    M'FADDON.  209 

was  reversed — from  the  sentence  of  reversal,  the  district  attorney 
appealed  to  this  court. 

Marshall,  C.  J. : — "  This  case  involves  the  very  delicate  and  impor- 
tant inquiry,  whether  an  American  citizen  can  assert,  in  an  American 
court,  a  title  to  an  armed  national  vessel,  found  within  the  waters 
of  the  United  States. 

"The  question  has  been  considered  with  an  earnest  solicitude, 
that  the  decision  may  conform  to  those  principles  of  national  and 
municipal  law  by  which  it  ought  to  be  regulated. 

"  In  exploring  an  unbeaten  path,  with  few,  if  any  aids,  from  pre- 
cedents or  written  law,  the  court  has  found  it  necessary  to  rely 
much  on  general  principles,  and  on  a  train  of  reasoning,  founded  on 
cases  in  some  degree  analogous  to  this. 

"The  jurisdiction  of  courts  is  a  branch  of  that  which  is  possessed 
by  the  nation  as  an  independent  sovereign  power. 

"The  jurisdiction  of  the  nation  Avithin  its  own  territory  is  neces- 
sarily exclusive  and  absolute.  It  is  susceptible  of  no  limitation  not 
imposed  by  itself.  Any  restriction  upon  it,  deriving  validity  from 
an  external  source,  would  imply  a  diminution  of  its  own  sovereignty 
to  the  extent  of  the  restriction,  and  an  investment  of  that  sovereignty 
to  the  same  extent  in  that  power  which  could  impose  such  restric- 
tions. 

"  All  exceptions,  therefore,  to  the  full  and  complete  power  of  a 
nation  within  its  own  territories,  must  be  traced  up  to  the  consent 
of  the  nation  itself.     They  can  flow  from  no  other  legitimate  source. 

"  This  consent  may  be  either  express  or  implied.  In  the  latter 
case,  it  is  less  determinate,  exposed  more  to  the  uncertainties  of 
construction ;  but,  if  understood,  not  less  obligatory. 

"  The  world  being  composed  of  distinct  sovereignties,  possessing 
equal  rights  and  equal  independence,  whose  mutual  benefit  is  pro- 
moted by  intercourse  with  each  other,  and  by  an  interchange  of 
those  good  offices  which  humanity  dictates  and  its  wants  require, 
all  sovereigns  have  consented  to  a  relaxation  in  practice,  in  cases  under 
certain  peculiar  circumstances,  of  that  absolute  and  complete  juris- 
diction within  their  respective  territories  which  sovereignty  confers, 

"This  consent  may,  in  some  histances,  be  tested  by  connnon 
usage,  and  by  common  opinion,  growing  out  of  that  usage. 

"A  nation  would  justly  be  considered  as  violating  its  faith,  al- 
though that  faith  might  not  be  expressly  plighted,  which  should 
suddenly  and  without  previous  notice,  exercise  its  territorial  powers 
in  a  manner  not  consonant  to  the  usages  and  received  obligations  of 
the  civilized  world, 

"This  full  and  absolute  territorial  jurisdiction  being  alike  the  at- 

14 


210  TERRITORIAL  JURISDICTION.  [PART  I. 

tribute  of  every  sovereign,  and  being  incapable  of  conferring  extra- 
territorial power,  would  not  seem  to  contemplate  foreign  sovereigns 
nor  their  sovereign  rights  as  its  objects.  One  sovereign  being  in  no 
respect  amenable  to  another,  and  being  bound  by  obligations  of  the 
highest  character  not  to  degrade  the  dignity  of  his  nation,  by  placing 
himself  or  its  sovereign  rights  within  the  jurisdiction  of  another, 
can  be  supposed  to  enter  a  foreign  territory  only  under  an  express 
license,  or  in  the  confidence  that  the  immunities  belonging  to  his  in- 
dependent sovereign  station,  will  be  extended  to  him. 

"  This  perfect  equality  and  absolute  independence  of  sovereigns, 
and  this  common  interest  impelling  them  to  mutual  intercourse,  and 
an  interchange  of  good  offices  with  each  other,  have  given  rise  to  a 
class  of  cases  in  which  every  sovereign  is  understood  to  waive  the 
exercise  of  a  part  of  that  complete  exclusive  territorial  jurisdiction, 
which  has  been  stated  to  be  the  attribute  of  every  nation. 

"  1st.  One  of  these  is  admitted  to  be  the  exemi^tion  of  the  person 
of  the  sovereign  from  arrest  or  detention  within  a  foreign  territory. 

"  If  he  enters  that  territory  with  the  knowledge  and  license  of  its 
sovereign,  that  license,  although  containing  no  stipulation  exempt- 
ing his  person  from  arrest,  is  universally  understood  to  imply 
such  stipulation. 

"  Why  has  the  whole  civilized  world  concurred  in  this  construc- 
tion ?  The  answer  cannot  be  mistaken.  A  foreign  sovereign  is  not 
understood  as  intending  to  subject  himself  to  a  jurisdiction  incom- 
patible with  his  dignity  and  the  dignity  of  his  nation,  and  it  is  to 
avoid  this  subjection  that  the  license  has  been  obtained.  The  char- 
acter to  whom  it  is  given,  and  the  object  for  which  it  is  granted, 
equally  require  that  it  should  be  construed  to  impart  full  security 
to  the  person  who  has  obtained  it.  This  security,  however,  need 
not  be  expressed  ;  it  is  implied  from  the  circumstances  of  the  case. 
Should  one  sovereign  enter  the  territory  of  another,  without  the 
consent  of  that  other,  expressed  or  implied,  it  Avould  present  a  ques- 
tion which  does  not  appear  to  be  perfectly  settled,  a  decision  of 
wdiich  is  not  necessary  to  any  conclusion  to  which  the  court  may 
come  in  the  cause  under  consideration.  If  he  did  not  thereby 
expose  himself  to  the  territorial  jurisdiction  of  the  sovereign,  whose 
dominions  he  had  entered,  it  would  seem  to  be  because  all  sovereigns 
impliedly  engage  not  to  avail  themselves  of  a  power  over  their 
e(iual,  which  a  romantic  confidence  in  their  magnanimity  has  placed 
in  their  hands. 

"  2d.  A  second  case,  standing  on  the  same  principles  with  the 
first,  is  the  immunity  which  all  civilized  nations  allow  to  foreign 
ministers. 


CHAP.  II.]      THE   SCHOONER    "  EXCHANGE "    V.   M'FADDON.  211 

"Whatever  may  be  the  principle  on  which  this  immunity  is 
estabUshed,  whether  we  consider  him  as  in  the  place  of  the  sovereign 
he  represents,  or  by  a  political  fiction  suppose  him  to  be  extra- 
territorial, and  therefore,  in  point  of  law,  not  within  the  jurisdiction 
of  the  sovereign  at  whose  court  he  resides ;  still  the  immunity 
itself  is  granted  by  the  governing  power  of  the  nation  to  which  the 
minister  is  deputed,  his  fiction  of  extra-territoriality  could  not  be 
erected  and  supported  against  the  will  of  the  sovereign  of  the  terri- 
tory.    He  is  supposed  to  assent  to  it. 

"  This  consent  is  not  expressed.  It  is  true  that  in  some  countries, 
and  in  this  among  others,  a  special  law  is  enacted  for  the  case.  But 
the  law  obviously  proceeds  on  the  idea  of  prescribing  the  punishment 
of  an  act  previously  unlawful,  not  of  granting  to  a  foreign  minister 
a  privilege  which  he  would  not  otherwise  possess. 

"  The  assent  of  the  sovereign  to  the  very  important  and  extensive 
exemptions  from  territorial  jurisdiction  which  are  admitted  to  attach 
to  foreign  ministers,  is  implied  from  the  considerations  that,  without 
such  exemption,  every  sovereign  would  hazard  his  own  dignity  by 
employing  a  public  minister  abroad.  His  minister  would  owe  tem- 
porary and  local  allegiance  to  a  foreign  prince,  and  would  be  less 
competent  to  the  objects  of  his  mission.  A  sovereign  committing 
the  interests  of  his  nation  with  a  foreign  power,  to  the  care  of  a 
person  whom  he  has  selected  for  that  purpose,  cannot  intend  to 
subject  his  minister  in  any  degree  to  that  power  ;  and  therefore  a 
consent  to  receive  him,  implies  a  consent  that  he  shall  possess  those 
privileges  which  his  principal  intended  he  should  retain,  privileges 
which  are  essential  to  the  dignity  of  his  sovereign,  and  to  the  duties 
he  is  bound  to  perform. 

"  In  what  cases  a  minister,  by  infracting  the  laws  of  the  country 
in  which  he  resides,  may  subject  himself  to  other  punishment  than 
will  be  inflicted  by  his  own  sovereign,  is  an  inquiry  foreign  to  the 
present  purpose.  If  his  crimes  be  such  as  to  render  him  amenable 
to  the  local  jurisdiction,  it  must  be  because  they  forfeit  the  priv- 
ileges annexed  to  his  character ;  and  the  minister,  by  violating  the 
conditions  under  Avhich  he  was  received  as  the  representative  of  a 
foreign  sovereign,  has  surrendered  the  immunities  granted  on  those 
conditions  ;  or,  according  to  the  true  meaning  of  the  original  assent, 
has  ceased  to  be  entitled  to  them. 

"  3d.  A  third  case  in  which  a  sovereign  is  understood  to  cede  a 
portion  of  his  territorial  jurisdiction  is,  where  he  allows  the  troops 
of  a  foreign  prince  to  pass  through  his  dominions. 

"In  such  case,  without  any  express  declaration  waiving  jurisdic- 
tion over  the  army  to  which  this  right  of  passage  has  been  granted, 


212  TERRITORIAL   JURISDICTION.  [PAIIT  I, 

the  sovereign  who  should  attempt  to  exercise  it  would  certainly  he 
considered  as  violating  his  faith.  By  exercising-  it,  tlie  purpose  for 
which  the  free  passage  Avas  granted  would  be  defeated,  and  a  por- 
tion of  the  military  force  of  a  foreign  independent  nation  would  he 
diverted  from  those  national  objects  and  duties  to  which  it  was 
applicable,  and  would  be  withdrawn  from  the  control  of  the  sover- 
eign whose  power  and  whose  safety  might  greatly  depend  on  retain- 
ing the  exclusive  command  and  disposition  of  this  force.  The  grant 
of  a  free  passage,  therefore,  implies  a  waiver  of  all  jurisdiction  over 
the  troops  during  their  passage,  and  permits  the  foreign  general  to 
use  that  discipline,  and  to  inflict  those  punishments  Avhich  the 
government  of  his  army  may  require. 

"But  if,  without  such  express  permit,  an  army  should  be  led 
through  the  territories  of  a  foreign  prince,  might  the  jurisdiction  of 
the  territory  be  rightfully  exercised  over  the  individuals  composing 
this  army  ? 

"  Without  doubt  a  military  force  can  never  gain  immunities  of 
any  other  description  than  those  which  war  gives,  by  entering  a 
foreign  territory  against  the  Avill  of  its  sovereign.  But  if  his  consent, 
instead  of  being  expressed  by  a  particular  license,  be  expressed  l)y  a 
general  declaration  that  foreign  troops  may  pass  through  a  specified 
tract  of  country,  a  distinction  between  such  general  permit  and  a 
particular  license  is  not  perceived.  It  would  seem  reasonable  that 
every  immunity  which  Avould  be  conferred  by  a  special  license, 
would  be,  in  like  manner  conferred  by  such  general  permit.  We 
have  seen  that  a  license  to  pass  through  a  territory  implies  immu- 
nities not  expressed,  and  it  is  material  to  inquire  why  the  license 
itself  may  not  be  presumed'?^ 

"  It  is  obvious  that  the  passage  of  an  army  through  a  foreign  terri- 
tory will  probably  be  at  all  times  inconvenient  and  injurious,  and 
would  often  be  imminently  dangerous  to  the  sovereign  through  whose 
dominion  it  passed.  Such  a  practice  would  break  down  some  of  the 
most  decisive  distinctions  between  peace  and  war,  and  would  reduce 

1  In  Neal  Dow  v.  Juhnson,  1879,  100  U.  S.  158,  at  170,  Field,  J.,  sjieaking 
for  tlie  court,  said :  "  Tlie  question  liere  is,  what  is  the  law  wiiich  governs  an  army 
invading  an  enemy's  country  1  It  is  not  tlie  civil  law  of  the  invaded  country ;  it  is 
not  the  civil  law  of  the  conquering  country;  it  is  military  law  —  the  law  of  war  — 
and  its  supremacy  for  the  protection  of  the  officers  and  soliliers  of  the  army,  when  in 
service  in  the  field  in  the  enemy's  country,  is  as  essential  to  the  eflSciency  of  the 
army  as  the  supremacy  of  the  civil  law  at  liome,  and,  in  time  of  peace,  is  essential  to 
the  preservation  of  lihcrty."  To  the  same  effect,  Coleman  v.  Tennessee,  1878,  97  U.  S. 
500,  per  Field,  J.  In  like  manner,  a  State  court  may  not  exercise  jurisdiction  for 
violation  of  a  State  statute  in  a  military  reservation,  Wills  v.  State,  1871,  3  Heisk. 
(Tenn.),141.  — Ed. 


r:iAP.  11.]      THE   SCHOONKR    "EXCHANGE"    V.    M'FADDON.  213 

a  nation  to  the  necessity  of  resisting  by  war  an  act  not  absolutely 
hostile  in  its  cliaracter,  or  of  exposing  itself  to  the  stratagems  and 
frauds  of  a  power  whose  integrity  niiglit  be  doubted,  and  wlio  might 
enter  the  country  under  deceitful  pretexts.  It  is  for  reasons  like 
tliese  that  the  general  license  to  foreigners  to  enter  the  dominions 
of  a  friendly  power,  is  never  understood  to  extend  to  a  military 
force ;  and  an  army  marching  into  the  dominions  of  another  sover- 
eign, may  justly  be  considered  as  committing  an  act  of  hostility ; 
and  if  not  opposed  by  force,  acquires  no  privileges  by  its  irregular 
and  improper  conduct.  It  may,  however,  well  be  questioned  whether 
any  other  than  the  sovereign  power  of  the  state  be  capable  of  decid- 
ing that  such  military  commander  is  without  a  license. 

"  But  the  rule  which  is  applicable  to  armies,  does  not  appear  to  be 
equally  applicable  to  ships  of  war  entering  the  ports  of  a  friendly 
power.  The  injury  inseparable  from  the  march  of  an  army  through 
an  inhabited  country  and  the  dangers  often,  indeed  generally,  at- 
tending it,  do  not  ensue  from  admitting  a  ship  of  war,  without  a 
special  license,  into  a  friendly  port.  A  different  rule,  therefore,  with 
respect  to  this  species  of  military  force  has  been  generally  adopted. 
If,  for  reasons  of  state,  the  ports  of  a  nation  generally,  or  any  par- 
ticular ports  be  closed  against  vessels  of  war  generally,  or  the  vessels 
of  any  particular  nation,  notice  is  usually  given  of  such  determina- 
tion. If  there  be  no  prohibition,  the  ports  of  a  friendly  nation  are 
considered  as  open  to  tlie  public  ships  of  all  powers  with  whom  it 
is  at  peace,  and  they  are  supposed  to  enter  such  ports  and  to  re- 
main in  them  while  allowed  to  remain,  under  the  protection  of  the 
government  of  the  place. 

"  In  almost  every  instance,  the  treaties  between  civilized  nations 
contain  a  stipulation  to  this  effect  in  favor  of  vessels  driven  in  by 
stress  of  weather  or  other  urgent  necessity.  In  such  cases  the 
sovereign  is  bound  by  compact  to  authorize  foreign  vessels  to  enter 
his  ports.  The  treaty  bids  him  to  allow  vessels  in  distress  to  find 
refuge  and  asylum  in  his  ports,  and  this  is  a  license  which  he  is  not 
at  liberty  to  retract.  If  would  be  difficult  to  assign  a  reason  for 
withholding  from  a  license  thus  granted,  any  immunity  from  local 
jurisdiction  Avhicli  would  be  implied  in  a  special  license. 

"  If  there  be  no  treaty  applicable  to  the  case,  and  the  sovereign, 
from  motives  deemed  adequate  by  himself,  permits  his  ports  to  re- 
main open  to  the  public  ships  of  foreign  friendly  powers,  the  con- 
clusion seems  irresistible,  that  they  enter  by  his  assent.  And  if 
they  enter  by  his  assent  necessarily  implied,  no  just  reason  is  per- 
ceived by  the  court  for  distinguishing  their  case  from  that  of  vessels 
which  enter  by  express  assent.  In  all  the  cases  of  exemption  which 
have  been  reviewed,  much  has  been  implied ;  but  tlie  obligation  of 


214  '  TERRITORIAL   JURISDICTION.  [PART  T. 

what  was  implied  has  been  found  equal  to  the  oblig'ation  of  that 
which  was  expressed.  Are  there  reasons  for  denying  the  applica- 
tion of  this  principle  to  ships  of  war  ? 

"  In  this  part  of  the  subject  a  difficulty  is  to  be  encountered,  the 
seriousness  of  which  is  acknowledged,  but  which  the  court  will  not 
attempt  to  evade. 

"  These  treaties  which  provide  for  the  admission  and  safe  depart- 
ure of  public  vessels  entering  a  port  from  stress  of  weather,  or  other 
urgent  cause,  provide  in  like  manner  for  the  private  vessels  of  the 
nation ;  and  where  public  vessels  enter  a  port  under  the  general 
license  which  is  implied  merely  from  the  absence  of  a  prohibition, 
they  are,  it  may  be  urged,  in  the  same  condition  with  merchant 
vessels  entering  the  same  port  for  the  purposes  of  trade  who  cannot 
thereby  claim  any  exemption  from  the  jurisdiction  of  the  country. 
It  may  be  contended,  certainly  with  much  plausibility  if  not  cor- 
rectness, that  the  same  rule,  and  same  principle  are  applicable  to 
public  and  private  ships  ;  and  since  it  is  admitted  that  private  ships, 
entering  without  special  license  become  subject  to  the  local  juris- 
diction, it  is  demanded  on  what  authority  an  exception  is  made  in 
favor  of  ships  of  war. 

"  It  is  by  no  means  conceded,  that  a  private  vessel  really  availing 
herself  of  an  asylum  provided  by  treaty,  and  not  attempting  to 
trade,  would  become  amenable  to  the  local  jurisdiction  unless  she 
committed  some  act  forfeiting  the  protection  she  claims  under  com- 
pact. On  the  contrary,  motives  may  be  assigned  for  stipulating 
and  according  immunities  to  vessels  in  cases  of  distress,  which  would 
not  be  demanded  for,  or  allowed  to  those  which  enter  voluntarily, 
and  for  ordinary  purposes.  On  this  part  of  the  subject,  however, 
the  court  does  not  mean  to  indicate  any  opinion.  The  case  itself 
may  possibly  occur,  and  ought  not  to  be  prejudiced. 

"  Without  deciding  how  far  such  stipulations  in  favor  of  distressed 
vessels,  as  are  usual  in  treaties,  may  exempt  private  ships  from  the 
jurisdiction  of  the  place,  it  may  safely  be  asserted  that  the  whole 
reasoning  upon  which  such  exemption  has  been  implied  in  other 
cases,  applies  with  full  force  to  the  exemption  of  ships  of  war  in 
this. 

" '  It  is  impossible  to  conceive,'  says  Yattel, '  that  a  prince  who  sends 
an  ambassador  or  any  other  minister  can  have  any  intention  of  sub- 
jecting him  to  the  authority  of  a  foreign  power,  and  this  considera- 
tion furnishes  an  additional  argument,  which  completely  establishes 
the  independency  of  a  public  minister.  If  it  cannot  be  reasonal)ly 
presumed  that  his  sovereign  means  to  subject  him  to  the  authority 
of  the  prince  to  whom  he  is  sent,  the  latter,  in  receiving  the  minis- 


CHAP.  II.]      THE   SCHOONER    "EXCHANGE"    V.    M'FADDON.  215 

ter,  consents  to  admit  him  on  the  footing  of  independency;  and  thus 
there  exists  hetween  tlie  two  princes  a  tacit  convention,  which  gives 
a  new  force  to  the  natural  obligation.' 

"  Equally  impossible  is  it  to  conceive,  whatever  may  be  the  con- 
struction as  to  private  ships,  that  a  prince  who  stipulates  a  passage 
for  his  troops,  or  an  asylum  for  his  ships  of  war  in  distress,  should 
mean  to  subject  his  army  or  his  navy  to  the  jurisdiction  of  a  foreign 
sovereign.  And  if  this  cannot  be  presumed,  the  sovereign  of  the 
port  must  be  considered  as  having  conceded  the  privilege  to  the  ex- 
tent in  which  it  must  have  been  understood  to  be  asked. 

"  To  the  court,  it  appears,  that  where,  without  treaty,  the  ports 
of  a  nation  are  open  to  the  private  and  public  ships  of  a  friendly 
power,  whose  subjects  have  also  liberty  without  special  license,  to 
enter  the  country  for  business  or  amusement,  a  clear  distinction  is 
to  be  drawn  between  the  rights  accorded  to  private  individuals  or 
trading  vessels,  and  those  accorded  to  iDublic  armed  ships  which 
constitute  a  part  of  the  military  force  of  the  nation. 

"  The  preceding  reasoning,  has  maintained  the  propositions  that 
all  exemptions  from  territorial  jurisdiction  must  be  derived  from  the 
consent  of  the  sovereign  of  the  territory ;  that  this  consent  may  be 
implied  or  expressed ;  and  that,  when  implied,  its  extent  must  be 
regulated  by  the  nature  of  the  case  and  the  views  under  which  the 
parties  requiring  and  conceding  it  must  be  supposed  to  act. 

"  When  private  individuals  of  one  nation  spread  themselves  through 
another  as  business  or  caprice  maj^  direct,  mingling  indiscriminately 
with  the  inhabitants  of  that  other,  or  when  merchant  vessels 
enter  for  the  i)urposes  of  trade,  it  would  be  obviously  inconvenient 
and  dangerous  to  society,  and  would  subject  the  laws  to  continual 
infraction,  and  the  government  to  degradation,  if  such  individuals  or 
merchants  did  not  owe  temporary  and  local  allegiance,  and  were  not 
amenable  to  the  jurisdiction  of  the  country.  Nor  can  the  foreign 
sovereign  have  any  motive  for  wishing  such  exemption.  His  sub- 
jects thus  passing  into  foreign  countries,  are  not  employed  by  him, 
nor  are  they  engaged  in  national  pursuits.  Consequently  there  are 
powerful  motives  for  not  exempting  persons  of  this  description  from 
the  jurisdiction  of  the  country  in  which  they  are  found,  and  no  one 
motive  for  requiring  it.  The  implied  license,  therefore,  under 
which  they  enter,  can  never  be  construed  to  grant  such  exemption. 
But  in  all  respects  different  is  the  situation  of  a  public  armed  ship. 
She  constitutes  a  part  of  the  military  force  of  her  nation  ;  acts  under 
the  immediate  and  direct  command  of  the  sovereign ;  is  employed  by 
him  in  national  objects.  He  has  many  and  powerful  motives  for 
preventing  those  oljjects  from  being  defeated  by  the  interference  of 


216  TERRITORIAL   JURISDICTION.  [PART  I. 

a  foreign  state.  Such  interference  cannot  take  place  witliout  affect- 
ing his  power  and  liis  dignity.  The  implied  license,  tlierefore,  under 
which  such  vessel  enters  a  friendly  port,  may  reasonably  be  construed, 
and,  it  seems  to  the  court,  ought  to  be  construed,  as  containing  an 
exemption  from  the  jurisdiction  of  the  sovereign,  within  ^A■hose  ter- 
ritory she  claims  the  rites  of  hospitality. 

"Upon  these  principles,  by  the  unanimous  consent  of  nations,  a 
foreigner  is  amenable  to  the  laws  of  the  place;  but  certainly  in 
practice,  nations  have  not  yet  asserted  their  jurisdiction  over  the 
public  armed  ships  of  a  foreign  sovereign,  entering  a  port  open  for 
their  reception. 

"  Bynkershoek,  a  jurist  of  great  reputation,  has  indeed  maintained 
that  the  property  of  a  foreign  sovereign  is  not  distinguishable  by  any 
legal  exemption  from  the  property  of  an  ordinary  individual,  and 
has  quoted  several  cases  in  which  courts  have  exercised  jurisdiction 
over  causes  in  which  a  foreign  sovereign  was  made  a  party  defend- 
ant. 

"  Without  indicating  any  opinion  on  this  question,  it  may  safely 
be  affirmed,  that  there  is  a  manifest  distinction  between  the  private 
property  of  the  person  wdio  happens  to  be  a  prince,  and  that  mili- 
tary force  which  supports  the  sovereign  power,  and  maintains  the 
dignity  and  the  independence  of  a  nation.  A  prince,  by  acquiring 
private  property  in  a  foreign  country,  may  possibly  be  considered  as 
subjecting  that  property  to  the  territorial  jurisdiction  ;  he  may  be 
considered  as  so  far  laying  down  the  prince,  and  assuming  the  char- 
acter of  a  private  individual ;  but  this  he  cannot  be  presumed  to  do 
with  respect  to  any  portion  of  that  armed  force,  which  upholds  his 
crown,  and  the  nation  he  is  intrusted  to  govern. 

"  The  only  applicable  case  cited  by  Bynkershoek,  is  that  of  the 
Spanish  ships  of  war,  seized  in  Flushing  for  a  debt  due  from  the 
King  of  Spain.  In  that  case  the  states  generally  interposed ;  and 
there  is  reason  to  believe,  from  the  manner  in  which  the  trans- 
action is  stated,  that,  either  by  the  interference  of  government,  or 
the  decision  of  the  court,  the  vessels  were  released.  This  case  of 
the  Spanish  vessels  is,  it  is  believed,  the  only  case  furnished  by  the 
history  of  the  Avorld,  of  an  attempt  made  by  an  individual  to  assert 
a  claim  against  a  foreign  prince,  by  seizing  the  armed  vessels  of  the 
nation.  That  this  proceeding  was  at  once  arrested  by  the  govern- 
ment, in  a  nation  which  appears  to  have  asserted  the  power  of  pro- 
ceeding in  the  same  manner  against  the  private  property  of  the 
prince,  would  seem  to  furnish  no  feeble  argument  in  support  of  the 
universality  of  the  opinion  in  favor  of  the  exemption  claimed  for 
ships  of  war.  The  distinction  made  in  our  own  laws  between  public 
and  private  ships  would  appear  to  proceed  from  the  same  opinion. 


CHAP.  II.]       THE    SCHOONER    "EXCHANGE"    V.    M'FADDON.  217 

"  It  seems,  then,  to  the  court,  to  be  a  principle  of  public  law,  that 
national  ships  of  war,  entering  the  port  of  a  friendly  power  open 
for  their  reception,  are  to  be  considered,  as  exempted  by  the  con- 
sent of  that  power  from  its  jurisdiction. 

"  \yithout  doubt,  the  sovereign  of  the  place  is  capable  of  destroy- 
ing this  implication.  He  may  claim  and  exercise  jurisdiction, 
either  by  employing  force,  or  by  subjecting  such  vessels  to  the  ordi- 
nary tribunals.  But,  until  such  power  be  exerted  in  a  manner  not 
to  be  misunderstood,  the  sovereign  cannot  be  considered  as  having 
imparted  to  the  ordinary  tribunals  a  jurisdiction,  which  it  would  be 
a  breach  of  faith  to  exercise.  Those  general  statutory  provisions, 
therefore,  which  are  descriptive  of  the  ordinary  jurisdiction  of  the 
judicial  tribunals,  which  give  an  individual  whose  property  has  been 
wrested  from  him,  a  right  to  claim  that  property  in  the  courts  of 
the  country  in  which  it  is  found,  ought  not,  in  the  opinion  of  this 
court,  to  be  so  construed  as  to  give  them  jurisdiction  in  a  case  in 
which  the  sovereign  power  has  impliedly  consented  to  waive  its  juris- 
diction. 

"  The  arguments  in  favor  of  this  opinion  which  have  been  drawn 
from  the  general  inability  of  the  judicial  power  to  enforce  its  decis- 
ions in  cases  of  this  description,  from  the  consideration  that  the 
sovereign  power  of  the  nation  is  alone  competent  to  avenge  wrongs 
committed  by  a  sovereign,  that  tlie  questions  to  which  such  wrongs 
give  birtli  are  rather  questions  of  policy  than  of  law,  that  they  are 
for  diplomatic,  ratlier  than  legal  discussion,  are  of  great  weight,  and 
merit  serious  attention.  But  the  argument  has  already  been  drawn 
to  a  length  which  forbids  a  particular  examination  of  these  points. 

"  The  principles  which  have  been  stated  will  now  be  applied  to  the 
case  at  bar. 

"  In  the  present  state  of  the  evidence  and  proceedings,  the  ^x- 
change  must  be  considered  as  a  vessel  which  was  the  property  of 
the  libellants,  whose  claim  is  repelled  by  the  fact,  that  she  is  now 
a  national  armed  vessel,  commissioned  by,  and  in  the  service  of  the 
Emperor  of  France.  The  evidence  of  this  fact  is  not  controverted. 
But  it  is  contended  that  it  constitutes  no  bar  to  an  inquiry  into  the 
validity  of  the  title,  by  which  the  emperor  holds  this  vessel.  Every 
person,  it  is  alleged,  who  is  entitled  to  property  brought  within  the 
jurisdiction  of  our  courts,  has  a  right  to  assert  his  title  in  those 
courts,  unless  there  be  some  law  taking  his  case  out  of  tlie  general 
rule.  It  is  therefore  said  to  be  the  right,  and  if  it  be  the  right,  it  is 
the  duty  of  the  court,  to  inquire  whether  this  title  has  been  ex- 
tinguished by  an  act,  the  validity  of  which  is  recognized  by  national 
or  municipal  law. 


218  TERRITORIAL   JURISDICTION.  [PART  I. 

"  If  the  preceding  reasoning;  be  correct,  the  Exchange^  being  a 
public  armed  ship,  in  tlie  service  of  a  foreign  sovereign,  with  wliom 
the  government  of  tlie  United  States  is  at  peace,  andliaving  entered 
an  American  port  open  for  her  reception,  on  the  terms  on  which  ships 
of  war  are  generally  permitted  to  enter  the  ports  of  a  friendly  power, 
must  be  considered  as  having  come  into  the  American  territory, 
under  an  implied  promise,  that  while  necessarily  Avithin  it,  and  de- 
meaning herself  in  a  friendly  manner,  she  should  be  exempt  from 
the  jurisdiction  of  the  country."  ^ 


THE   "  CONSTITUTTOX." 
High  Court  of  Admiralty,  1879. 

(48  Law  Journal,  P.  D.  cj-  J.  13.) 

The  facts  are  sufficiently  stated  in  the  opinion. 

Sir  Robert  PniLLiMORE  : — "  In  this  case  an  application  was  made  to 
the  court  to  allow  a  warrant  to  issue  of  a  peculiar  character — a 
warrant  which  was  to  l)e  served  upon  a  ship  of  war  belonging  to  an 
independent  state  at  amity  with  Her  Majesty.  The  court  directed 
the  case  to  stand  over,  and  suggested  that  it  would  be  proper  that 
notice  should  be  given  to  his  Excellency,  the  American  Minister  in 
London,  and  to  Lord  Salisbury,  as  Secretary  for  Foreign  Affairs. 
The  court  has  reason  to  congratulate  itself  that  it  took  that  step, 
for  the  result  has  been  that  it  has  had  the  advantage  of  hearing  the 
opinion  of  counsel  on  behalf  of  the  United  States  and  of  the  learned 
gentleman  representing  the  Crown.  It  appears  from  telegrams  which 
have  passed  in  the  case  that  a  claim  has  been  made  by  the  owner  of 
the  tug  for  1,500^.,  but  that  the  American  Consul  at  Portsmouth  has 
forwarded  simply  a  cheque  for  200/.,  in  recognition  of  the  services 
which  the  tug  has  rendered.  The  owner  of  the  tug  was  dissatisfied 
with  that  amount ;  and  consequently  made  an  application  to  this 
court  for  an  order  to  issue  a  warrant  to  arrest  the  Constitution  and 
her  cargo. 

1  See  tlie  Sitkn,  1855  (C.  Cusliing),  7  Op.  Atty.-Gen.  122.  For  a  technical  definition 
of  a  ship  of  war,  and  for  the  exact  moment  when  a  vessel  in  construction  becomes  a 
warship  and  entitled  to  rights,  privileges,  and  immunities  thereof,  see  Tucker  v. 
Ale.xandoff,  1901,  18-3  U.  S.  424,  which  is,  broadly  speaking,  a  commentary  on  the 
judgment  and  dicta  of  the  principal  case.  For  criticism  on  the  case  see  15  Harv. 
Law  Hev.  657.  —  Ed. 


CHAP.  II.]  THE   "  CONSTITUTION."  219 

"  The  question,  therefore,  which  is  raised  under  these  proceedings 
is  whether  I  have  any  jurisdiction  to  permit  the  arrest  of  a  foreign 
ship  of  war  belonging  to  an  independent  state  in  amity  witli  our 
sovereign,  and  I  liardly  tlimlc  that  it  can  be  denied  that  if  I  were 
to  exercise  tlie  jurisdiction  which  is  craved  in  the  present  case,  I 
should  be  doing  that  for  which  there  exists  no  direct  precedent. 
On  the  contrary,  I  have  no  doubt  as  to  this  general  proposition — that 
ships  of  war  belonging  to  another  nation  with  whom  we  are  at  peace 
are  exempt  from  the  civil  jurisdiction  of  the  courts  of  this  countrj'- ; 
and  I  have  listened  in  vain  for  any  peculiar  circumstances  which 
would  take  this  case  out  of  that  general  proposition.  It  has  happened 
to  me  more  than  once  to  have  been  requested  by  foreign  states  to 
sit  as  arbitrator,  and  to  make  awards  in  differences  which  had  arisen 
between  them  and  British  subjects.  Had  such  an  application 
been  made  in  the  present  instance  I  would  have  gladly  undertaken 
the  duty  sought  to  be  imposed  upon  me;  but  that  is  not  the  state  of 
matters  I  have  now  to  consider.  All  that  I  have  now  to  determme 
is  the  simple  question  of  jurisdiction.  Various  cases  have  been 
cited  before  me  in  argument,  all  of  which,  with  one  exception,  were 
discussed  in  the  case  of  the  CharJcieh,  but  that  was  a  w^holly  different 
case  because  the  Khedive  of  Egypt  was  not  an  independent  sovereign, 
and  the  Charkieh  herself  formed  one  of  a  fleet  of  merchantmen.  I 
may  in  the  lengthy  judgment  which  I  delivered  in  that  cause,  have 
let  drop  some  expression  Avhich  may  have  given  rise  to  an  impression 
that  a  foreign  ship  of  war  is  liable  to  arrest,  but,  in  that  case  this 
question,  as  it  is  here  raised,  had  not  to  be  decided.  Now  that  it 
comes  before  me  in  this  plain  and  simple  form,  I  feel  no  doubt  that 
it  would  be  improper  for  me  to  accede  to  the  request  of  the  owner 
of  the  steam-tug,  nor  do  I  think,  as  I  have  said  above,  that  the 
Constitution  is  liable  to  the  process  of  this  court.  In  regard  to  the 
question  of  the  liability  of  the  cargo,  I  must  say  I  see  no  distinction 
between  the  issue  of  a  warrant  in  the  case  of  the  ship  and  in  the 
case  of  this  cargo;  it  is  on  board  a  foreign  vessel  of  war,  and  is 
under  the  charge  of  a  foreign  government  for  public  purposes. 

So  that,  having  no  authority  to  issue  either  of  the  warrants  prayed 
for,  and  as  no  precedent  exists  for  such  a  course,  I  must  dismiss  this 
motion  with  costs.^" 

^Mr.  Cobbett  (Cases  on  International  Law,  .35,) says:  "Before  the  decision  in  the 
case  of  the  Constitution,  some  doubt  seems  to  have  existed  as  to  whether  salvage 
pi-oceedings  might  not  be  instituted  in  the  English  Court  of  Admiralty  against  a 
public  vessel.  In  the  case  of  the  Charkieh,  Sir  E.  Pliillimore  had  said,  '  It  is  by 
no  means  clear  that  a  ship  of  war  to  which  salvage  services  have  been  rendered,  may 
not.  j!(re  (jentium,  be  liable  to  be  proceeded  against  in  the  Court  of  Admiralty  for 
the  remuneration  due  for  such  services.' 


220  TERRITORIAL   JURISDICTION.  [PART  I. 

(b)    Other  Public  Sh  ips. 

THE    "PARLEMEXT    BELGE." 

Court  of  Appeals,  1878. 

(Law  Reports,  5  Probate  Die,  197.) 

On  an  appeal  on  behalf  of  the  Crown  from  a  decision  of  Sir  Eobert 
Phillimore,  the  judgment  of  the  court,  James,  Baggallay,  and 
Brett,  Lord  Justices,  by  Brett,  L.  J.^  : — "la  this  case  proceedings 
in  rem  on  behalf  of  the  owners  of  the  Daring  were  instituted  in  the 
Admiralty  Division,  in  accordaTice  with  the  forms  prescribed  by  the 
Judicature  Act,  against  the  Parlement  Beige,  to  recover  redress  in 
respect  of  a  collision.  A  writ  was  served  in  the  usual  aud  prescribed 
manner  on  board  the  Parlement  Beige.  Xo  a,ppearance  was  entered, 
but  the  Attorney-General,  in  answer  to  a  motion  to  direct  that  judg- 

"  In  a  much  earlier  case,  of  the  Prlns  Frederik  (2  Dods.,  4."31),  a  Dutch  man-of- 
war,  whilst  on  a  voyage  from  Batavia  to  the  Texel,  was  partially  disabled  by  stress 
of  weather  off  the  Scilly  Isles,  and  was  Ijrought  into  Moxmt's  Bay  with  the  assist- 
ance of  the  master  and  crew  of  a  British  brig,  belonging  to  the  port  of  Penzance. 
The  Prins  Frederik  was  at  the  time  employed  in  bringing  home  a  cargo  of  spice 
belonging  to  the  Dutch  Government,  and  for  this  purpose  some  of  her  guns  had 
been  removed.  The  salvors  instituted  salvage  proceedings  against  the  vessel,  on 
the  ground  that  she  had  for  the  time  being,  at  least,  lost  the  character  and  privileges 
of  a  public  vessel,  and  also  on  the  further  ground  that  such  proceedings  being  in 
rem,  and  not  against  the  King  of  the  Xetherlands  personally,  were  under  any  cir- 
cumstances admissible.  According  to  Lord  Campbell,  who  quoted  this  case,  in  1851 
(17  Q.  B.,  212),  Lord  Stowell  took  a  strong  view  against  the  asserted  jurisdiction. 
To  avoid  difficulty.  Lord  Stowell  caused  a  representation  to  be  made  to  the  Dutch 
government,  who  consented  to  his  disposing  of  the  matter  as  arbitrator.  Acting 
under  this  authority,  Lord  Stowell  awarded  the  sum  of  £800  and  costs  to  the 
salvors." 

Mr.  Dana,  in  liis  note,  Xo.  63,  says  :  "  It  may  be  considered  as  established  law, 
now,  that  the  public  vessels  of  a  foreign  state,  coming  within  the  jurisdiction  of  a 
friendly  state,  are  exempt  from  all  forms  of  process  in  private  snits.  Xor  will 
such  ships  be  seized,  or  in  any  way  interfered  with,  by  judicial  proceedings  in  the 
name  and  by  the  authority  of  the  state,  to  punish  violations  of  public  laws.  In 
such  cases,  the  offended  state  will  appeal  directly  to  the  other  sovereign.  Any 
proceedings  against  a  foreign  public  ship  would  be  regarded  as  an  unfriendly  if 
not  hostile  act,  in  the  present  state  of  the  law  of  nations." 

It  may  be  of  interest  to  know  that  tliis  is  tlie  frigate  Constitution,  sn  justly 
famous  for  its  exploits  ill  the  war  of  1812.  See  HoUis,  Tiie  Frigate  Constitution  (lyQl), 
pp.  237-2:]y.  — Ed. 

1  Statement  of  tlie  Editor. 


CHAP.  II.]  THE    "  PARLEMENT    BELGE."  221 

ment  with  costs  should  be  entered  for  the  plaintiffs,  and  that  a  war- 
rant should  be  issued  for  the  Parlement  Beige,  filed  an  information 
and  protest,  asserting  that  the  court  had  no  jurisdiction  to  entertain 
the  suit.  Upon  the  hearing  of  the  motion  and  protest  the  learned 
judge  of  the  Admiralty  Division  overruled  the  protest  and  allowed 
the  warrant  of  arrest  to  issue.  The  Attorne3-General  appealed.  The 
protest  alleged  that  the  Parlement  Beige  Avas  a  mail  packet  running 
between  Ostend  and  Dover,  and  one  of  the  packets  mentioned  in 
article  6  of  the  convention  of  the  ITtli  of  February,  1876,  made  be- 
tween the  sovereigns  of  Great  Britain  and  Belgium ;  that  she  was 
and  is  the  property  of  his  Majesty  the  King  of  the  Belgians,  and  in 
his  possession,  control  and  employ  as  reigning  sovereign  of  the  state, 
and  was  and  is  a  public  vessel  of  the  sovereign  and  state,  carrying 
his  Majesty's  royal  pennon,  and  was  navigated  and  employed  by 
and  in  the  possession  of  such  government,  and  was  officered  by 
officers  of  the  Royal  Belgian  navy,  holding  commissions,  etc.  In 
answer  it  was  averred  on  affidavits,  which  were  not  contradicted, 
that  the  packet  boat,  besides  carrying  letters,  carried  merchandise 
and  passengers  and  theii  luggage  for  hire.  *  *  * 

"  The  proposition  raised  by  the  first  question  seems  to  be  as 
follows :  Has  the  Admiralty  Division  jurisdiction  in  respect  of  a 
collision  to  proceed  in  rem  against,  and  in  case  of  non-appearance  or 
omission  to  find  bail,  to  seize  and  sell,  a  ship  present  in  this 
country,  which  ship  is  at  the  time  of  the  proceedings  the  property 
of  a  foreign  sovereign,  is  in  his  possession,  control,  and  employ  as 
sovereign  by  means  of  his  commissioned  officers,  and  is  a  public 
vessel  of  his  state,  in  the  sense  of  its  being  used  for  purposes  treated 
by  such  sovereign  and  his  advisers  as  public  national  services,  it 
being  admitted  that  such  ship,  though  commissioned,  is  not  an  armed 
ship  of  war  or  employed  as  a  part  of  the  military  force  of  his 
country  ?  *  *  * 

"It  is  admitted  that  neither  the  sovereign  of  Great  Britain  nor  any 
friendh^  sovereign  can  be  adversely  personally  impleaded  in  any 
court  of  this  country.  It  is  admitted  that  no  armed  ship  of  war  of 
the  sovereign  of  Great  Britain,  or  of  a  foreign  sovereign  can  be  seized 
by  any  process  whatever,  exercised  for  any  purpose  by  any  court  of 
this  country.  But  it  is  said  that  this  vessel,  though  it  is  the  property 
of  a  friendly  sovereign  in  his  public  capacity  and  is  used  for  pur- 
poses treated  by  him  as  public  national  services,  can  be  seized  and 
sold  under  the  process  of  the  Admiralty  Court  of  this  country, 
because  it  will,  if  so  seized  and  sold,  be  so  treated,  not  in  a  suit 
brought  against  the  sovereign  personally,  but  in  a  suit  in  rem  against 
the  vessel  itself.     This  contention  raises  two  questions  ;  first,  sup- 


222  TERRITORIAL   JURISDICTION.  [PART  I. 

posing  that  an  action  in  rem  is  an  action  against  the  property  only, 
meaning  thereby  tliat  it  is  not  a  legal  proceeding  at  all  against  the 
owner  of  the  projjerty,  yet  can  the  property  in  question  be  subject 
to  the  jui'isdiction  of  the  court  ? 

"  Secondly,  is  it  true  to  say  that  an  action  in.  rem  is  only  and  solely 
a  legal  procedure  against  the  property,  or  is  it  not  rather  a  procedure 
indirectly,  if  not  directly,  impleading  the  owner  of  the  property  to 
answer  to  the  judgment  of  the  court  to  the  extent  of  his  interest  in 
the  property?  *  *  * 

"  Having  carefully  considered  the  case  of  the  CharJdeh,  we  are 
of  opinion  that  the  proposition  deduced  from  the  earlier  cases  in  an 
earlier  part  of  this  judgment  is  the  correct  exposition  of  the  law  of 
nations,  viz.,  that  as  a  consequence  of  the  absolute  independence  of 
every  sovereign  authority  and  of  the  international  comity  which 
induces  every  sovereign  state  to  respect  the  independence  of  every 
other  sovereign  state,  each  and  every  one  declines  to  exercise  by 
means  of  any  of  its  courts,  any  of  its  territorial  jurisdiction  over  the 
person  of  any  sovereign  or  ambassador  of  any  other  state,  or  over 
the  public  property  of  any  state  which  is  destined  to  its  public 
use,  or  over  the  property  of  any  ambassador,  though  such  sovereign, 
ambassador  or  property  be  within  its  territory,  and  therefore,  but 
for  the  common  agreement,  subject  to  its  jurisdiction. 

"  This  proposition  would  determine  the  first  question  in  the  present 
case  in  favor  of  the  protest,  even  if  an  action  in  rem  were  held  to  be 
a  proceeding  solely  against  property,  and  not  a  procedure  directly 
or  indirectly  impleading  the  owner  of  the  property  to  answer  to  the 
judgment  of  the  court.  But  we  cannot  allow  it  to  be  supposed  that 
in  our  opinion  the  owner  of  the  property  is  not  indirectly  impleaded. 
The  course  of  proceeding,  undoubtedly,  is  first  to  seize  the  proj)erty. 
It  is  undoubtedly,  not  necessary,  in  order  to  enable  the  court  to  pro- 
ceed further,  that  the  owner  should  be  personally  served  with  any 
process.  In  the  majority  of  cases,  brought  under  the  cognizance 
of  an  Admiralty  Court,  no  such  personal  service  could  be  effected. 
Another  course  was  therefore  taken  from  the  earliest  times.  The 
seizure  of  the  i')roperty  was  made  by  means  of  a  formality  which  was 
as  public  as  could  be  devised.  That  formality  of  necessity  gave 
notice  of  the  suit  to  the  agents  of  the  owner  of  the  property,  and  so, 
in  substance,  to  him.  Besides  which,  by  the  regular  course  of  the 
admiralty,  the  owner  was  cited  or  had  notice  to  ajDpear  to  show 
cause  why  his  property  should  not  be  liable  to  answer  to  the  com- 
plainant. The  owner  has  a  right  to  appear  and  show  cause,  a  right 
which  cannot  be  denied.  It  is  not  necessary,  it  is  true,  that  the 
notice  or  citation  should  be  personally  served.     But  unless  it  were 


CHAP.  II.]  THE    "  PAKLEMENT   BELGE."  223 

considered  that,  either  by  means  of  tlie  publicity  of  the  manner  of 
arresting  the  property,  or  by  means  of  tlie  publicity  of  the  notice  or 
citation,  the  owner  had  an  opportunity  of  protecting  his  property 
from  a  final  decree  by  the  court,  the  judgment  in  rem  of  a  court 
would  be  manifestly  contrary  to  natural  justice.  In  a  claim  made 
in  respect  of  a  collision  the  property  is  not  treated  as  the  delinquent 
jyer  se.  Though  the  shi])  has  been  in  collision,  and  has  caused  injury 
by  reason  of  the  negligence  or  want  of  skill  of  those  in  charge  of  her, 
yet  she  cannot  be  made  the  means  of  compensation  if  those  in  charge 
Of  her  w^ere  not  the  servants  of  her  then  owner,  as  if  she  was  in 
charge  of  a  compulsory  pilot.  This  is  conclusive  to  show  that  the 
liability  to  compensate  must  be  fixed  not  merely  on  the  property, 
but  also  on  the  owner  through  the  property. 

"  If  so,  the  owner  is  at  least  indirectly  impleaded  to  answer  to,  that 
is  to  say,  to  be  affected  by,  the  judgment  of  the  court.  It  is  no 
answer  to  say  that  if  the  property  be  sold  after  the  maritime  lien 
has  accrued,  the  property  may  be  seized  and  sold  as  against  the 
new  owner. 

"  This  is  a  severe  law,  probably  arising  from  the  difficulty  of  other- 
wise enforcing  any  remedy  in  favor  of  an  injured  suitor.  But  the 
pro]3erty  cannot  be  sold  as  against  the  new  owner,  if  it  could  not 
have  been  sold  as  against  the  owner  at  the  time  when  the  alleged 
lien  accrued.  This  doctrine  of  the  Courts  of  Admiralty  goes  only 
to  the  extent,  that  the  innocent  purchaser  takes  the  property  sub- 
ject to  the  inchoate  maritime  lien  which  attached  to  it  as  against 
him  who  was  the  owner  at  the  time  the  lien  attached.  The  new 
owner  has  the  same  public  notice  of  the  suit  and  the  same  oppor- 
tunity and  right  of  appearance  as  the  former  owner  would  have  had. 
He  is  impleaded  in  the  same  way  as  the  former  owner  would  have 
been.  Either  is  affected  in  his  interests  by  the  judgment  of  a  court 
which  is  bound  to  give  him  the  means  of  knowing  that  it  is  about 
to  proceed  to  affect  those  interests,  and  that  it  is  bound  to  hear  him 
if  he  objects.     That  is,  in  our  opinion,  an  impleading. 

"  The  case  of  The  Bold  Buccleugh  does  not  decide  to  the  contrary 
of  this.  It  decides  that  an  action  in  rem  is  a  different  action  from 
one  in  personam  and  has  a  different  result.  But  it  does  not  decide 
that  a  court  which  seizes  and  sells  a  man's  property  does  not  assume 
to  make  that  man  subject  to  its  jurisdiction.  To  implead  an  inde- 
pendent sovereign  in  such  a  way  is  to  call  upon  him  to  sacrifice 
either  his  property  or  his  independence.  To  place  him  in  that 
position  is  a  breach  of  the  principle  upon  which  his  immunity  from 
jurisdiction  rests.  AVe  think  that  he  cannot  be  so  indirectly  impleaded 
any  more  than  he  could  be  directly  impleaded.     The  case  is,  upon 


22-4  TERRITORIAL    JURISDICTION.  [PAIIT  I. 

this  consideration  of  it,  brought  witliin  the  general  rule  that  a 
sovereign  authority  cannot  be  personally  impleaded  in  any  court. 

"  But  it  is  said  that  the  immunity  is  lost  by  reason  of  the  vship 
having  been  used  for  trading  purposes.  As  to  this,  it  must  be 
maintained  either  that  the  ship  has  been  so  used  as  to  have  been 
employed  substantially  as  a  mere  trading  ship  and  not  substantially 
for  national  purposes,  or  that  a  use  of  her  in  part  for  trading  pur- 
poses takes  away  the  immunity,  although  she  is  in  possession  of  the 
sovereign  authority  by  the  hands  of  commissioned  officers,  and  is 
substantially  in  use  for  national  purposes.  B(^th  these  propositions 
raise  the  question  of  how  the  ship  must  be  considered  to  have  been 
employed. 

"  As  to  the  first,  the  ship  has  been  by  the  sovereign  of  Belgium, 
by  the  usual  means,  declared  to  be  in  his  possession  as  sovereign, 
and  to  be  a  public  vessel  of  the  state.  It  seems  very  difficult  to 
say  that  any  court  can  inquire  by  contentious  testimony  whether 
that  declaration  is  or  is  not  correct.  To  submit  to  such  an  inquii-y 
before  the  court  is  to  submit  to  its  jurisdiction.  It  has  been  held 
that  if  the  ship  be  declared  by  the  sovereign  authority  by  the  usual 
means  to  be  a  ship  of  war,  that  declaration  cannot  be  inquired  uito. 
That  was  expressly  decided  under  very  trying  circumstances  in  the 
case  of  the  Exchange.  Whether  the  ship  is  a  public  ship  used  for 
national  purposes  seems  to  come  within  the  same  rule.  But  if 
such  an  inquiry  could  properly  be  instituted  it  seems  clear  that  in 
the  present  case  the  ship  lias  been  mainly  used  for  the  purpose 
of  carrying  the  mails,  and  only  subserviently  to  that  main  object 
for  the  purposes  of  trade.  The  carrying  of  passengers  and  merchan- 
dise has  been  subordinated  to  the  duty  of  carrying  the  mails.  The 
ship  is  not,  in  fact,  brought  within  the  first  proposition.  As  to  the 
second,  it  has  been  frequently  stated  that  an  independent  sovereign 
cannot  be  personally  sued,  although  he  has  carried  on  a  private  trad- 
ing adventure.  It  has  been  held  that  an  ambassador  cannot  be 
personally  sued,  although  he  has  traded ;  and  in  both  cases  because 
such  a  suit  would  be  inconsistent  with  the  independence  and  equality 
of  the  state  which  he  represents.  If  the  remedy  sought  by  an  action 
in  rem  against  public  property  is,  as  we  think  it  is,  an  indirect  mode 
of  exercising  the  authority  of  the  court  against  the  owner  of  the 
property,  then  the  attempt  to  exercise  such  an  authority  is  an  at- 
tempt inconsistent  with  the  independence  and  equality  of  the  state 
which  is  represented  by  such  owner.  The  property  cannot,  upon 
the  hypothesis,be  denied  to  be  public  property ;  the  case  is  within 
the  terms  of  the  rule ;  it  is  Avithin  the  spirit  of  the  rule  ;  therefore, 
we  are  of  opinion  that  the  mere  fact  of  the  ship  being  used  subor- 


CHAP.  II.]  WILDENHUS'   CASE.  225 

dinately  and  partially  for  trading  purposes  does  not  take  away  the 
general  immunity.  For  all  these  reasons,  we  are  unahle  to  agree 
with  the  learned  judge,  and  have  come  to  the  conclusion  that  the 
judgment  must  be  reversed."  ^ 


Sectiox  10.  —  Merchant  Vessels. 


TTILDEXHUS'  CASE. 
Supreme  Court  of  the  United  States,  1886. 

(120  United  States,  1.) 

"While  the  Belgian  steamer  Koordland  was  moored  to  a  clock  in 
Jersey  City,  Xcav  Jersey,  an  affray  arose  between  decks  in  which 
Joseph  Wildenhus  killed  one  Fijeus.  Wildeuhus  was  arrested  by  the 
Jersey  City  authorities;  whereupon  the  Belgian  consul  applied  to 
the  U.  S.  Circuit  Court  for  Kew  Jersey,  for  his  release  upon  a  writ  of 
habeas  corjius. 

The  court  refused  to  deliver  the  prisoner  and  to  reverse  that  deci- 
sion.    An  appeal  is  taken  to  the  U.  S.  Supreme  Court. ^ 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. 

It  is  part  of  the  law  of  civilized  nations  that  when  a  merchant  vessel 
of  one  comitry  enters  the  ports  of  another  for  the  purposes  of  trade, 

1  Tn  the  case  of  Brifjfjs  v.  Lifjht-Boats  in  the  Supreme  Court  of  Massachusetts,  18G5 
(11  Allen,  157),  the  plaintiff  had  built  some  floating  lights  for  tlie  United  States 
government,  and  had  delivered  them  and  received  the  contract  price;  and  the  title  to 
them  had  vested  in  the  United  States,  subject  to  the  builder's  lien.  The  plaintiff  now 
sought  to  enforce  his  lien. 

Gray,  J.,  says,  in  tlie  course  of  his  judgment,  "  wherever  the  question  has  been 
raised,  courts  of  admiralty  have  gencrall}'  declined  to  take  jurisiliction  of  a  libel  in 
rem  against  a  public  ship,  without  the  consent  of  the  government.  In  every  aspect  in 
which  we  can  look  at  these  suits,  in  the  lights  of  principle  or  of  authority,  we  cannot 
escape  the  conclusion  that  the  state  courts  have  no  jurisdiction  or  right  to  entertain 
them." 

Mr.  Justice  Gray's  opinion,  from  which  the  above  extracts  are  taken,  gives  a 
learned  and  exhaustive  account  of  the  origin  and  development  of  the  doctrine  that 
the  sovereign  may  not  be  sued  without  his  consent  (pp.  106-186).  —  Ed. 

-  A  short  statement  is  substituted  for  that  of  the  reporter,  and  part  of  the  opinion 
is  omitted.  —  Ed. 

15 


226  TERRITORIAL    JURISDICTION.  [PART  I. 

it  subjects  itself  to  the  law  of  the  place  to  which  it  goes,  unless  by 
treaty  or  otherwise  the  two  countries  have  come  to  some  different 
understanding  or  agreement  ;  for,  as  was  said  by  Chief  Justice 
Marshall  in  The  Exchange,  7  Cranch,  116,  144,  "it  would  be  obvi- 
ously inconvenient  and  dangerous  to  society,  and  would  subject  the 
laws  to  continual  infraction,  and  the  Government  to  degradation,  if 
such  *  *  *  merchants  did  not  owe  temporary  and  local  allegiance,  and 
were  not  amenable  to  the  jurisdiction  of  the  country."  United  States 
V.  Diekelman,  92  U.  S.  520;  1  Phillimore's  International  Law,  (3d 
Ed.)  483,  §  351;  Twiss'  Law  of  Nations  in  Time  of  Peace,  229, 
§  159;  Creasy 's  International  Law,  167,  §  176;  Halleck's  Interna- 
tional Law,  (1st  Ed.)  171.  And  the  English  judges  have  uniformly 
recognized  the  rights  of  the  courts  of  the  country  of  which  the  port 
is  part  to  punish  crimes  committed  by  one  foreigner  on  another  in 
a  foreign  merchant  ship.  Regina  v.  Cunningho.Tn,  Bell.  C.  C.  72; 
S.  C.  8  Cox  C.  C.  104;  Regina  v.  Anderson,  11  Cox  C.  G.  198,  204; 
S.  C.  L.  E.  1  C.  C.  161,  165;  Regina  v.  Keyn,  13  Cox  C.  C.  403, 
486,  525,  s.  c.  2  Ex.  Div.  63,  161,  213.  As  the  owner  has  volunta- 
rily taken  his  vessel  for  his  own  private  purposes  to  a  place  within  the 
dominion  of  a  government  other  than  his  own,  and  from  which  he 
seeks  protection  during  his  stay,  he  owes  that  government  such  alle- 
giance for  the  time  being  as  is  due  for  the  protection  to  which  he 
becomes  entitled. 

Erom  experience,  however,  it  was  found  long  ago  that  it  would  be 
beneficial  to  commerce  if  the  local  government  would  abstain  from 
interfering  with  the  internal  discipline  of  the  ship,  and  the  general 
regulation  of  the  rights  and  duties  of  the  officers  and  crew  towards 
the  vessel  or  among  themselves.  And  so  by  comity  it  came  to  be 
generally  understood  among  civilized  nations  that  all  matters  of  disci- 
pline and  all  things  done  on  board  which  affected  onl}-  the  vessel  or 
those  belonging  to  her,  and  did  not  involve  the  peace  or  dignity  of 
the  country,  or  the  tranquillity  of  the  port,  should  be  left  by  the  local 
government  to  be  dealt  with  by  the  authorities  of  the  nation  to  which 
the  vessel  belonged  as  the  laws  of  that  nation  or  the  interests  of  its 
commerce  should  require.  But  if  crimes  are  committed  on  board  of  a 
character  to  disturb  the  peace  and  tranquillit}'  of  the  countrj'  to  which 
the  vessel  has  been  brought,  the  offenders  have  never  by  comity  or 
usage  been  entitled  to  any  exemption  from  the  operation  of  the  local 
laws  for  their  punishment,  if  the  local  tribunals  see  fit  to  assert  their 
authority.  Such  being  the  general  public  law  on  this  subject,  treaties 
and  conventions  have  been  entered  into  by  nations  having  commercial 
intercourse,  the  purpose  of  which  was  to  settle  and  define  the  rights 


CHAP.  II.]  WILDENHUS'  CASE.  227 

and  duties  of  the  contracting  parties  with  respect  to  each  other  in 
these  particulars,  and  thus  prevent  the  inconvenience  that  might  arise 
from  attempts  to  exercise  conflicting  jurisdictions. 

The  first  of  these  conventions  entered  into  by  the  United  States 
after  the  adoption  of  the  Constitution  was  with  France,  on  the  14th  of 
November,  1788,  8  Stat.  106,  "  for  the  purpose  of  defining  and  estab- 
lishing the  functions  and  privileges  of  their  respective  consuls  and 
vice-consuls,"  Art.  VIII.  of  which  is  as  follows: 

"  The  consuls  or  vice-consuls  shall  exercise  police  over  all  the 
vessels  of  their  respective  nations,  and  shall  have  on  board  the  said 
vessels  all  power  and  jurisdiction  in  civil  matters,  in  all  the  disputes 
which  may  there  arise ;  they  shall  have  an  entire  inspection  over  the 
said  vessels,  their  crew,  and  the  changes  and  substitutions  there  to  be 
made;  for  which  purpose  they  may  go  on  board  the  said  vessels  when- 
ever they  may  judge  it  necessary.  Well  understood  that  the  func- 
tions hereby  allowed  shall  be  confined  to  the  interior  of  the  vessels, 
and  that  they  shall  not  take  place  in  any  case  which  shall  have  any 
interference  with  the  police  of  the  i:)orts  where  the  said  vessels  shall 
be." 

It  was  when  this  convention  was  in  force  that  the  cases  of  TAe 
Sally  and  The  Xewton  arose,  an  account  of  which  is  given  in 
Wheaton's  Elements  of  International  Law  (3d  ed.),  153,  and  in  1 
Phillimore's  International  Law  (3d  ed.),  484  and  (2d  ed.),  407.  The 
Sally  was  an  American  merchant  vessel  in  the  port  of  Marseilles,  and 
The  Newton  a  vessel  of  a  similar  character  in  the  port  of  Antwerp, 
then  under  the  dominion  of  France.  In  the  case  of  The  Sally,  the 
mate,  in  the  alleged  exercise  of  discipline  over  the  crew,  had  inflicted 
a  severe  wound  on  one  of  the  seamen,  and  in  that  of  The  Newton 
one  seaman  had  made  an  assault  on  another  seaman  in  the  vessel's 
boat.  In  each  case  the  proper  consul  of  the  United  States  claimed 
exclusive  jurisdiction  of  the  oifence,  and  so  did  the  local  authorities 
of  the  port;  but  the  Council  of  State,  a  branch  of  the  political  de- 
partment of  the  government  of  France,  to  which  the  matter  was  re- 
ferred, pronounced  against  the  local  tribunals,  "considering  that  one 
of  these  cases  was  that  of  an  assault  committed  in  the  boat  of  the 
American  ship  Newton,  by  one  of  the  crew  upon  another,  and  the 
other  was  that  of  a  severe  wound  inflicted  by  the  mate  of  the  Ameri- 
can ship  Sally  upon  one  of  the  seamen  for  having  made  use  of  the 
boat  without  leave."  This  was  clearly  because  the  things  done  were 
not  such  as  to  disturb  "the  peace  or  tranquillity  of  the  port." 
Wheaton's  Elements  of  International  Law  (3d  ed.),  154.  The  case  of 
The  Sally  was  simply  a  quarrel  between  certain  of  the  crew  while  con- 


228  TERRITORIAL  JURISDICTION.  [PART  I. 

structively  on  board  the  vessel,  and  that  of  The  Xeu-ton  grew  out  of  a 
punishment  inflicted  by  an  officer  on  one  of  the  crew  for  disobedience 
of  orders.  Both  were  evidently  of  a  character  to  affect  only  the 
police  of  the  vessel,  and  thus  within  the  authority  expressly  granted 
the  consul  by  the  treaty.^ 

The  treaty  [with  Belgium,  1881]  is  part  of  the  supreme  law  of  the 
United  States,  and  has  the  same  force  and  effect  in  iS'ew  Jersey  that 
it  is  entitled  to  elsewhere.  If  it  gives  the  consul  of  Belgium  exclu- 
sive jurisdiction  over  the  offence  which  it  is  alleged  has  been  com- 
mitted within  the  territory  of  New  Jersey,  we  see  no  reason  why  he 
may  not  enforce  his  rights  under  the  treaty  by  writ  of  habeas  coiyus 
in  any  proper  court  of  the  United  States.  This  being  the  case,  the 
only  important  question  left  for  our  determination  is  whether  the 
thing  which  has  been  done  —  the  disorder  that  has  arisen  —  on  board 
this  vessel  is  of  a  nature  to  disturb  the  public  peace,  or,  as  some 
writers  term  it,  the  *' public  repose"  of  the  people  who  look  to  the 
State  of  New  Jersey  for  their  protection.  If  the  thing  done  —  "the 
disorder,"  as  it  is  called  in  the  treaty  —  is  of  a  character  to  affect 
those  on  shore  or  in  the  port  when  it  becomes  known,  the  fact  that 
only  those  on  the  ship  saw  it  when  it  was  done  is  a  matter  of  no 
moment.  Those  who  are  not  on  the  vessel  pay  no  special  attention  to 
the  mere  disputes  or  quarrels  of  the  seamen  while  on  board,  whether 
they  occur  under  deck  or  above.  Neither  do  they  as  a  rule  care  for 
anything  done  on  board  which  relates  only  to  the  discipline  of  the 
ship,  or  to  the  preservation  of  order  and  authority.  Not  so,  however, 
with  crimes  which  from  their  gravity  awaken  a  public  interest  as 
soon  as  they  become  known,  and  especially  those  of  a  character  which 
every  civilized  nation  considers  itself  bound  to  provide  a  severe 
punishment  for  when  committed  within  its  own  jurisdiction.  In 
such  cases  inquiry  is  certain  to  be  instituted  at  once  to  ascertain  how 
or  why  the  thing  was  done,  and  the  popular  excitement  rises  or  falls 
as  the  news  spreads  and  the  facts  become  known.  It  is  not  alone  the 
publicity  of  the  act,  or  the  noise  and  clamor  which  attends  it,  that 
fixes  the  nature  to  the  crime,  but  the  act  itself.  If  that  is  of  a  char- 
acter to  awaken  public  interest  when  it  becomes  known,  it  is  a  "dis- 
order" the  nature  of  which  is  to  affect  the  community  at  large,  and 
consequently  to  invoke  the  power  of  the  local  government  whose  peo- 

^  A  murder  was  committed  by  one  Frenchman  upon  another,  on  board  a  Frencli 
merchant  vessel,  at  anclior  in  a  Mexican  port;  held  that  it  is  not  necessarily  a  disturb- 
ance of  the  peace  of  the  port,  and  therefore  the  Mexican  courts  would  not  assume  juris- 
diction of  the  case,  L'Ancmonp,  Supreme  Ct.  of  Mexico,  1875  (Journal  de  Droit 
International  Trive,  1876,  p.  413).  — Ed. 


CHAP.  II.]  WILDENHUS'    CASE.  229 

pie  have  been  disturbed  by  what  was  done.  The  very  nature  of  such 
an  act  is  to  disturb  the  quiet  of  a  peaceful  community,  and  to  create, 
in  the  language  of  the  treaty,  a  "disorder"  which  will  "disturb  tran- 
quillity and  public  order  on  shore  or  in  the  port."  The  principle 
which  governs  the  whole  matter  is  this:  Disorders  which  disturb  only 
the  peace  of  the  ship  or  those  on  board  are  to  be  dealt  with  exclu- 
sively by  the  sovereignty  of  the  liome  of  the  ship,  but  those  which 
disturb  the  public  peace  may  be  suppressed,  and,  if  need  be,  the 
offenders  punished,  by  the  proper  authorities  of  the  local  jurisdiction. 
It  may  not  be  easy  at  all  times  to  determine  to  which  of  the  two 
jurisdictions  a  particular  act  of  disorder  belongs.  Much  will  un- 
doubtedly depend  on  the  attending  circumstances  of  the  particular 
case,  but  all  must  concede  that  felonious  homicide  is  a  subject  for  the 
local  jurisdiction,  and  that  if  the  proper  authorities  are  proceeding 
with  the  case  in  a  regular  way,  the  consul  has  no  right  to  interfere  to 
prevent  it.  That,  according  to  the  petition  for  the  habeas  corpus,  is 
this  case. 

This  is  fully  in  accord  with  the  practice  in  France,  where  the 
government  has  been  quite  as  liberal  towards  foreign  nations  in  this 
particular  as  any  other,  and  where,  as  we  have  seen  in  the  cases  of 
The  Sally  and  The  Newton,  by  a  decree  of  the  Council  of  State, 
representing  the  political  department  of  the  government,  the  French 
courts  were  prevented  from  exercising  jurisdiction-  Bat  afterwards, 
in  1859,  in  the  case  of  Jally,  the  mate  of  an  American  merchantman 
who  had  killed  one  of  the  crew  and  severely  wounded  another  on 
board  the  ship  in  the  port  of  Havre,  the  Court  of  Cassation,  the 
highest  judicial  tribunal  of  France,  upon  full  consideration  held, 
while  the  Convention  of  1853  was  in  force,  that  the  French  courts 
had  rightful  jurisdiction,  for  reasons  which  sufficiently  appear  in  the 
following  extract  from  its  judgment:^ 

"Considering  that  it  is  a  principle  of  the  law  of  nations  that  every 
state  has  sovereign  jurisdiction  throughout  its  territory; 

"Considering  that  by  the  terms  of  Article  3  of  the  Code  Kapoleon 
the  laws  of  police  and  safety  bind  all  those  who  inhabit  French  terri- 
tory, and  that  consequently  foreigners,  even  tratiseuntes,  find  them- 
selves subject  to  those  laws; 

"Considering  that  merchant  vessels  entering  the  port  of  a  nation 
other  than  that  to  which  they  belong  cannot  be  withdrawn  from  the 
territorial  jurisdiction,  in  any  case  in  which  the  interest  of  the  state 
of  which  that  port  forms  part  finds  itself  concerned,  without  danger 
to  good  order  and  to  the  dignity  of  the  government; 

"  Considering   that  every  state  is  interested  in  the  repression  of 

^  Usually  cited  as  the  case  of  the  Tempest.  —  Ed. 


230  TERRITORIAL   JURISDICTION.  [PART  I. 

crimes  and  offences  that  may  be  committed  in  the  ports  of  its  terri- 
tory, not  only  by  the  men  of  the  ship's  company  of  a  foreign  mer- 
chant vessel  towards  men  not  forming  part  of  that  company,  but  even 
by  men  of  the  ship's  company  among  themselves,  whenever  the  act  is 
of  a  nature  to  compromise  the  tranquillity  of  the  port,  or  the  inter- 
vention of  the  local  authority  is  invoked,  or  the  act  constitutes  a 
crime  by  common  law,"  (droit  commiin,  the  law  common  to  all  civil- 
ized nations),  "the  gravity  of  which  does  not  permit  any  nation  to 
leave  it  unpunished,  without  impugning  its  rights  of  jurisdictional 
and  territorial  sovereignty,  because  that  crime  is  in  itself  the  most 
manifest  as  well  as  the  most  flagrant  violation  of  the  laws  which  it  is 
the  duty  of  every  nation  to  cause  to  be  respected  in  all  parts  of  its 
territory."  1  Ortolan  Diplomatic  de  la  Mer  (4th  ed.),  pp.  455,  456; 
Sirey  (n.  s.),  1859,  p.  189. 

The  judgment  of  the  Circuit  Court  is  affirmed. 


THE   "EELIANCE." 
U.  S.  Circuit  Court  for  So.  Dist.  of  N.  Y.,  1848. 

(1  Abbott's  Advi.  Rep.,  317.) 

This  was  a  libel  in  rem  filed  by  the  owner,  master  and  crew  of  the 
bark  Reliance  against  One  Hundred  and  Ninety-four  shawls  salved 
by  the  libellants  from  the  wreck  of  the  Lady  Kewieway  to  recover 
salvage  compensation. 

The  Reliance  was  a  British  vessel  which  left  Liverpool  bound  to 
New  York.  Near  the  coast  of  England,  she  fell  in  with  the  Lady 
Kenneway  and  boarded  her,  finding  no  person  on  board. 

The  Lady  Kennetoay  was  a  British  East  Indiaman,  owned  in 
London,  on  her  way  to  London  from  Bombay.  Tlie  master  of  the 
Reliance  ordered  several  cases  containing  shawls  to  be  taken  from 
her,  and  then  abandoned  her.  The  Reliance  pursued  her  way  to 
New  York,  where  she  arrived  December  1,  1847. 

A  libel  was  filed  against  the  chief  part  of  the  articles  brought 
from  the  Lady  Kenneway.  The  British  consul,  by  leave  of  the  court, 
intervened  in  behalf  of  the  unknown  British  owners,  praying  the 
court  to  order  restitution  for  their  benefit  of  the  property  attached, 
after  allowing  the  libellants  a  reasonable  salvage,  if,  in  the  judg- 
ment of  the  court,  "  they  proved  a  case  of  derelict,  and  their  conse- 
quent right  to  salvage." 


CHAP.  II.]  THE    "  IIELIANCE."  231 

The  individual  claimants,  as  well  as  the  consnl,  set  up  defenses 
against  the  award  of  salvage,  charging  waste,  damage,  and  destruc- 
tion of  tlie  apparel  and  stores  of  the  vessel. 

It  is  insisted  tliat  the  court  should  decline  jurisdiction  in  the 
case,  because  tlie  Ladij  Kemieioay  was  an  English  vessel,  then  on  a 
homeward  voyage,  with  her  cargo  for  an  English  market,  and  the 
Reliance  at  the  time,  was  an  English  vessel,  with  a  British  crew  on 
board,  who  had  signed  British  articles  and  that  accordingly  both 
vessels  and  libellants  were  bound  to  return  to  terminate  the  voyage 
at  a  British  port.  ^ 

Betts,  J. —  a  *  *  *  ^g  a  general  principle,  the  citizens  or  subjects 
of  the  same  nation  have  no  right  to  invoke  a  foreign  tribunal  to 
adjudicate  between  them,  as  to  matters  of  tort  or  contract  solely 
affecting  themselves.  It  rests  in  the  discretion  of  the  court,  whose 
authority  is  invoked,  to  determine  whether  it  Avill  take  cognizance 
of  such  matters  or  not.  *  *  * 

"As  maritime  courts  proceed  upon  a  common  rule  of  right  and 
compensation  in  salvage  cases,  the  question  of  jurisdiction  in  that 
class  of  actions  will  seldom  be  raised  or  regarded  before  them. 

"  The  courts  will  take  cognizance  of  those  cases  as  matters  of 
course,  if  either  party  is  territorially  within  the  jurisdiction  of  the 
court ;  and  the  property  being  brought  within  their  jurisdiction, 
although  the  salvors  and  claimants  may  be  citizens  or  subjects  of 
different  nations,  the  court  will  unhesitatingly  dispose  of  the  sub- 
ject, if  satisfied  that  the  whole  right  is  before  it, — salvage  being 
essentially  a  question  of  the  J«s  gentium.  *  *  * 

"I  find  no  authority  of  weight  which  imposes  on  the  courts  of  our 
country  the  necessity  of  determining  controversies  between  for- 
eigners resident  abroad,  either  in  common-law  actions,  transitory  in 
their  nature,  or  maritime  proceedings  when  the  remedy  is  iyi  rem. 

"  If  the  doctrine  were  peremptory,  imparting  to  suitors  the  right 
to  such  aid,  and  imposing  on  courts  the  obligation  to  afford  it, 
actions  for  supplies  and  materials,  on  charter-parties  and  bills  of 
lading,  or  by  mechanics  for  labor,  would  be  comprehended  within 
the  class,  equally  with  suits  for  wages  on  bottomry  bonds  or  for 
salvage  compensation. 

"  I  am  satisfied  the  law  is  not  so.  In  my  judgment  it  would  be 
lamentable  if  courts  were  compelled  to  defer  the  business  of  the 
citizens  of  the  country  to  bestow  their  time  in  litigation  between 
parties  owing  no  allegiance  to  its  laws,  and  contributing  in  no  way 
to  its  support.     Should  it  transpire,  hi  the  progress  of  the  litigation, 

^  Statement  of  tlie  case  is  slioitciiod.  —  Ed. 


232  TERRlTOPwIAL   JURISDICTION.  [PART  I. 

that  the  law  of  the  domicile  of  the  parties  must  be  ascertained  in 
order  to  adjudge  rightly  on  their  claims,  or  that  witnesses  must  be 
examined  there  to  fix  the  facts  in  controversy,  the  court  might  be 
compelled  to  suspend  its  movement  and  wait  until  these  cardinal 
particulars  could  be  supplied  from  abroad.  Every  tribunal  expe- 
riences the  inconvenience  and  unsatisfactoriness  of  so  settling  con- 
troversies between  those  even  who  can  have  no  other  means  of  re- 
dress, and  will  recognize  the  value  of  the  principle  which  enables 
them,  in  regard  to  foreigners,  to  remit  their  controversies  to  their 
home  tribunals,  where  the  law  is  known,  and  the  facts  can  be  more 
surely  determined.  This  court  has,  in  repeated  instances,  acted 
upon  this  acceptation  of  the  law ;  and  believing  it  to  be  the  sound 
and  safe  rule,  I  shall  adhere  to  it  in  all  cases  authorizing  that  exer- 
cise of  discretion. 

"  The  question  to  be  considered  is,  whether,  in  this  case,  the  rights 
of  parties  would  be  best  promoted  by  retaining  the  case  and  dispos- 
ing of  the  subject  here,  or  by  remitting  it  to  the  home  courts  of  the 
salvors  and  claimants. 

"  The  answer  advances  many  grave  imputations  against  the  con- 
duct of  the  master  and  seamen  on  board  the  wreck  and  after  the 
property  came  into  their  possession,  and  these  charges  are  not  with- 
out color  of  proof  to  support  them.  Their  case  does  not,  accord- 
ingly, come  before  the  court  with  the  most  persuasive  claims  to  its 
interposition  and  favor.  When  salvage  services  are  eminently  mer- 
itorious, and  the  only  inquiry  to  be  made  is  the  rate  of  award  to  be 
allotted.  Admiralty  Courts  would  be  solicitous  to  give  every  practi- 
cable despatch  to  suits  by  the  salvors,  and  relieve  them  both  from 
delay  and  expense  in  obtaining  their  just  reward.  It  would  scarcely 
occur  that  any  court  would  withhold  its  aid  from  such  suitors.  It 
is  quite  different  when  the  foreign  owner  of  the  property  charges 
his  fellow-subject  with  embezzlement  and  spoliation,  and  other 
wanton  misconduct  in  respect  to  it,  and  prays  the  privilege  to  con- 
test his  claim  to  compensation  before  the  authorities  of  their  com- 
mon country.  *  *  * 

"  The  termination  of  the  voyage  of  the  Reliance  was  in  England, 
where  it  is  to  be  presumed  she  would  arrive  within  a  short  period 
after  leaving  this  port,  and  it  is  most  fitting  that  the  question  of  the 
obligations  and  privileges  of  her  master  and  crew,  in  respect  to  serv- 
ices rendered  a  British  vessel,  a  wreck  or  in  distress  on  the  English 
coast,  should  be  determined  in  the  courts  of  that  nation.  *  *  * 

"  As  the  libellants  may  not  reclaim  the  property  attached  in  their 
behalf,  the  decree  will  make  provision  enabling  the  claimants  who 
have  intervened  in  their  own  right,  and  the  British  Consul  in  behalf 


CHAP.  II.]  THE    "RELIANCE."  233 

of  unknown  owners,  to  take  the  goods  out  of  court  and  ship  them  to 
their  port  of  destination."  ^ 

iln  the  case  of  ^4er<,s'en  v.  Ship  Aurora  (1800),  Bee's  Adm.  Reports,  IGl,  the 
suit  was  bi'ought  for  seamen's  wages  and  to  obtain  a  discliarge  on  account  of  the 
captain's  ill  treatment.  In  the  course  of  the  judgment  the  judge  said  :  "  From 
this  evidence  I  do  not  find  sufficient  evidence  to  entitle  these  three  men  to  their 
discharge  (from  the  completion  of  the  voyage). 

"  (1)  Because  no  luilawful  weapon  was  used. 

"  (2)  Sufficient  provocation  for  the  captain's  acts. 

"  Tills  is  the  case  of  a  neutral  vessel,  the  crew  of  which  are  bound  by  their  arti- 
cles to  return  to  Hamburgh,  before  they  are  entitled  to  receive  their  wages,  and  the 
12tli  of  those  articles  stipulates  that  everything  not  specifieil  therein  shall  be  regu- 
lated according  to  the  marine  law  of  Hamburgh  for  regulating  the  conduct  of 
officers  and  seamen  aboard  vessels  belonging  to  that  iilace." 

The  suit  was  dismissed  with  costs. 

In  Willendson  v.  The  FdrslJket,  1  Peter's  Adm.,  197,  the  plaintiff,  a  sailor  on  a 
Danish  ship,  cited  his  captain  on  a  claim  for  wages.  The  judge,  in  the  course  of 
his  opinion,  says  that  his  general  rule  has  been  not  to  take  cognizance  of  disputes 
between  masters  and  crews  of  foreign  ships. 

"I  have,"  said  he,  "  *  *  *  in  peculiar  cases  *  *  *  compelled  the  payment  of 
wages  *  *  *  assisted  in  recovering  deserters  *  *  *  (and  in)  reducing  to  obedience 
perverse  and  rebellious  mariners. 

"  In  the  case  now  before  me  I  see  no  cause  to  warrant  my  taking  cognizance. 
It  is  the  duty  of  the  master  to  return  the  seaman  to  his  own  country.  This  he 
offers  to  do.  *  *  *  He  must  give  the  sailor  a  certificate  of  forgiveness  of  past 
offenses,  to  avail  hlni  in  his  own  country.  *  *  *  if*  *  *  there  shall  appear  no 
deception  in  the  present  offer  (to  carry  the  seaman  home)  I  shall  not  further  inter- 
fere, but  dismiss  the  suit." 

Mr.  Hamilton  Fish,  Secretary  of  State,  in  a  dispatch  to  General  Schenck,  United 
States  Minister  in  London  (Xovember  8,  1873),  said  :  "  Referring  to  the  case  of 
Albert  Allen  Gardner,  master  of  the  American  ship  Anna  Camp,  tried  in  the 
County  Court  at  Liverpool,  in  May  last,  copies  of  certain  papers  relating  to  which 
w^ere  forwarded  to  you  by  General  Badeau,  I  desire  to  call  your  attention  to  the 
claim  of  jurisdiction  put  forth  by  the  local  common-law  courts  of  Great  Britain  in 
this  and  other  similar  cases. 

"  It  seems  to  be  claimed  by  the  courts  in  question  that  their  jurisdiction  extends 
to  the  hearing  and  determining  of  causes  arising  upon  complaints  between  masters 
and  mariners  of  vessels  of  the  United  States,  not  only  where  the  occurrences  upon 
which  the  complaint  may  be  founded  took  place  within  British  ports  or  waters, 
but  also  when  the  offense  which  is  made  the  ground  of  action  was  committed  on 
board  the  vessel  on  the  high  seas. 

"  The  exercise  of  this  jurisdiction  by  the  common-law  courts  at  Liverpool  has 
already  been  the  cause  of  much  annoyance  and  in  some  instances  serious  incon- 
venience to  masters  and  owners  of  American  vessels,  and  if  persisted  in  may  affect 
injuriously  the  interests  of  American  shipping." 

Mr.  Fish  proceeds  to  quote  from  the  decision  of  .ludge  Betts,  in  the  case  of  the 
Reliance,  and  to  commend  the  principles  there  set  forth  as  the  only  proper  rule  to 
be  followed. 

Compare  the  following  two  decisions  in  cases  of  merchant  sliips  for  alleged  in- 
fringements of  patent  rights  :  Caldwell  v.  Van  VUssentjen,  1851,  9  Hare,  415,  in  which 
the  vessel  was  restrained  from  using  the  patent,  and  Brown  v.  Duchesne,  1857,  19 
How.  183,  in  wliicli  tlie  court  refused  its  aid  to  the  American  patentee.  —  Ed. 


234  TERRITORIAL   JURISDICTION.  [PART  I. 

ELLIS   V.    MITCHELL. 
Supreme  Court  of  Hong  Koxg,  1874. 

(U.  S.  Foreign  Relations,  1875,  600.) 

Judgment,  Small,  C.  J. : — 

"  Our  decision  in  this  appeal  having  been  for  some  time  come  to, 
we  handed  to  the  registrar  our  concluded  judgment  and  by  our  direc- 
tion he  gave  it  out  on  the  7th  of  November  last.  That  decision  was 
in  the  following  terms :  '  We  have  fully  considered  all  the  facts  in 
this  case  an^d  the  very  able  arguments  which,  on  tlie  part  of  the 
appellant,  Mr.  Kingsmill  submitted  to  us.  The  respondent  did  not 
appear.  We  are  of  opinion  that  the  appellant  has  failed  to  show 
that  the  decision  in  the  summary  branch  of  this  court  is  wrong.  It 
is  our  duty,  therefore,  to  dismiss  this  appeal.'  The  respondent  has 
incurred  no  costs  ;  we  say  nothing  as  to  costs.  Some  questions  as 
to  the  duties  and  jurisdiction  of  consuls  have  arisen  in  this  case  to 
which  we  should  wish  to  advert,  but  as  these  questions  arise  out  of 
this  case,  rather  than  lead  up  to  our  decision,  we  purpose  at  a  more 
convenient  opportunity  to  refer  to  them.  It  seems  to  us  that  a  some- 
what exaggerated  notion  as  to  the  duties  and  jurisdiction  of  consuls 
in  this  colony  is  prevalent. 

"  The  grounds  and  reasons  for  the  decision  in  this  case  were  very 
carefully  considered  and  conferred  on  between  us.  We  were  agreed 
in  the  conclusion  that  the  appeal  must  be  dismissed.  In  order  that 
the  parties  might  not  be  l^ept  longer  in  suspense,  we  directed  the 
decision  which  I  have  just  read  to  be  given  out  by  the  registrar  on  the 
7th  day  of  November,  as  I  have  already  said.  There  seems  to  have 
been  a  gi-ave  misapprehension  that  this  case  came  before  Mr.  Justice 
Snowden  as  an  appeal  from  the  decision  of  the  consul  of  the  United 
States. 

"It  was  not  so.  From  the  first  it  was  treated  by  the  learned  judge 
as  being  untouched  by  decision,  and,  indeed,  as  a  matter  entirely 
ultra  vires  the  consul  of  the  United  States.  True  it  is  that  a  dis- 
charge of  the  plaintiff  from  the  ship,  and  an  account  taken  in  the 
presence  of  the  consul  of  wages  earned,  were  produced  and  relied  on 
by  the  defendant,  the  master  of  the  ship,  as  an  answer  to  the  plaint- 
iff's claim ;  but  it  was  held  in  the  summary  branch  of  this  court, 
upon  tlie  evidence  before  it,  that  in  no  way  was  the  consul  acting  or 
intervening  judicially,  either  as  to  the  discharge,  or  as  to  the  account. 
No  claim  for  unlawful  dismissal  had  been  raised  before  the  consul. 


CHAP.  II.]  ELLIS    V.    MITCHELL.  235 

It  might  have  been  properly  raised  before  the  proper  judicial  tribunal 
of  and  within  the  United  States ;  but  no  evidence  was  adduced  to 
show  that  that  authority  was  vested  by  the  law  of  the  United  States 
in  the  consul  here.  Even  if  it  had  been  so  vested  by  any  such  law  of 
the  Union,  it  required  the  force  of  a  treaty,  and  an  act  of  Parliament, 
or  local  ordinance,  to  enable  the  consul  to  exercise  any  extra-territorial 
judicial  power  within  British  territory.  Although  some  instructions 
to  the  consuls  were  produced  to  the  court,  no  act  of  Congress  was 
produced,  nor  was  there  any  evidence  that  there  was  any  such  act, 
or  common-law  power  in  a  consul.  According  to  Chancellor  Kent's 
Commentaries,  vol.  T.,  p.  50,  et  seq.,  '  consuls  are  commercial  agents. 
*  *  *  In  some  places  they  have  been  invested  with  judicial  powers 
over  disputes  between  their  own  merchants  in  foreign  ports  ;  but  in 
the  commercial  treaties  made  by  Great  Britain  there  is  rarely  any 
stipulation  for  clothing  them  with  judicial  authority,  except  in 
treaties  with  the  Barbary  powers.  And  in  England  it  has  been  held 
that  a  consul  is  not  strictly  a  judicial  officer,  and  they  have  there  no 
judicial  power.'  He  cites  Waldron  v.  Combe,  3  Taunton,  162.  The 
words  of  the  Chief-Justice  Mansfield  there  are,  '  The  vice  consul  is 
no  judicial  officer.'  At  page  51  the  very  learned  chancellor  proceeds : 
'Xo  government  can  invest  its  consuls  with  judicial  power  over  their 
own  subjects  in  a  foreign  country  without  the  consent  of  the  foreign 
government,  founded  on  treaty.'  At  page  52,  he  says :  '  It  is  likewise 
made  their  duty  {i.  e.  of  consuls),  where  the  laws  of  the  country  per- 
mit, to  administer  on  the  personal  estates  of  American  citizens  dying 
within  their  consulates,'  etc.  And  in  note  (6)  he  says,  '  American 
consuls  cannot  take  cognizance  of  the  offenses  of  seamen  in  foreign 
ports,  nor  exempt  the  master  from  his  own  responsibility.'  He  cites 
Ware's  Reports  (American),  367.  And  to  conclude  all,  he  says  at  page 
53 :  '  The  consular  convention  between  France  and  this  country  (t.  e. 
the  United  States)  in  1778  allowed  consuls  to  exercise  police  over  all 
vessels  of  their  respective  nations  within  the  interior  of  the  vessels, 
and  to  exercise  a  species  of  civil  jurisdiction  by  determining  disputes 
concerning  wages,  and  between  the  master  and  crews  of  vessels 
belonging  to  their  own  country.  The  jurisdiction  claimed  under  the 
consular  convention  with  France  was  merely  voluntary,  and  although 
exclusive  of  any  coercive  authority,  and  we  (*.  e.  the  United  States) 
have  no  treaty  at  present  which  concedes  even  such  consular  func- 
tions.' AVe  quote  the  9th  edition  of  Kent's  Commentaries  (1858). 
We  have  before  us  the  valuable  work  of  Judge  Bouvier,  the  law- 
dictionary,  the  4th  edition  of  1872,  and  in  it  we  find  nothing  to  vary 
all  that  Chancellor  Kent  asserts.     Parsons'  Law  of  Shipping,  pub- 


236  TERRITORIAL   JURISDICTION.  [PART  I. 

lished  in  1869,  is  to  the  same  effect.     One  quotation  from  Parsons, 
vol.  II.,  p.  56. 

"  He  there  says,  '  a  discharge  (?".  e.  of  a  seaman,)  when  made  in  a 
foreign  port,  is  required  to  be  made  before  tlie  consul ;  but  the  pay- 
ment of  wages  already  due  is  not.'  And  this  to  such  an  extent  that 
the  learned  author  adds, '  and  the  consul  has  no  right  to  charge  a  com- 
mission for  witnessing  the  settlement,'  in  other  words,  he  has  nothing 
to  do  with  the  settlement  of  the  wages  due  ;  a  fortiori  he  has  no  author- 
ity in  reference  to  damages  for  breach  of  contract,  or  otherwise,  be- 
tween the  master  and  the  seaman.  Xow,  if  the  consul  has  no  such  au- 
thority, the  authority  must  be  somewhere,  and  it  cann*ot  be  con- 
tended, upon  any  grounds  of  which  we  are  aware,  that  this  court  has 
not  the  fullest  authority  over  all  such  disputes.  It  is  quite  clear  that 
the  legislature  of  this  country  can,  by  statute  or  ordinance,  give  extra- 
territorial powers  to  consuls,  but  as  all  such  powers  are  in  derogation 
of  the  royal  prerogative  all  such  laws  must  be  construed  stiictly.  It 
appears  to  us  that  ordinance  Xo.  4,  of  1850,  has  no  bearing  on  the  ques- 
tion before  us.  It  relates  to  cases  of  desertion  from  ships,  and  to 
nothing  else.  Ordinance  Xo.  6,  of  1862,  is  prohibitory.  It  says  that 
no  British  seaman  shall  be  discharged  elsewhere  than  at  the  harbor- 
master's office,  and  that  every  seaman  discharged  from  a  foreign 
ship,  represented  by  a  consul  here,  '  shall,  within  twenty-four  hours 
of  being  discharged  at  the  office  of  his  consul,  or  vice-consul,  pro- 
duce at  the  harbor-master's  office  a  certificate  of  his  discharge.' 
Xow,  this  is  not  an  enabling  statute,  and  it  gives  no  power 
to  any  consul  which  he  had  not  before.  All  it  does  is  to  assume 
that  every  discharge  of  a  foreign  seaman  will  have  been  given  at  the 
office  of  the  consulate  of  his  country.  But  for  legislation  the  dis- 
charge of  a  seaman  is  a  matter  between  master  and  seaman  only. 
Xo  treaty  has  been  produced,  no  act  of  Parliament  or  ordinance  other 
than  those  above  cited,  has  been  brought  to  the  notice  of  this  court. 
In  the  absence  of  any  such  we  are  driven  back  to  the  international 
law,  as  laid  down  by  Chancellor  Kent,  page  51,  that  the  consul  of 
the  United  States  is  not  a  judicial  officer,  'that  they  have  no  judicial 
power '  and,  page  53,  that  there  is  no  treaty  with  the  United  States 
which  authorizes  consuls  to  exercise  a  species  of  jurisdiction  by  de- 
termining disputes  concerning  wages  between  masters  and  crews 
belonging  to  their  own  country  in  this  colon3\  We  conclude,  there- 
fore, that  the  consul  of  the  United  States  has  no  judicial  powers  or 
authority  whatever  in  this  colony  as  to  wages  or  damages  for  wrongs, 
between  United  States  masters  and  seamen,  which  the  judicial 
authorities  here  can  recognize,  but  that  this  court  must  decide  such 
questions  when  brought  before  it. 


CHAP.  11.]  ELLIS    V.    MITCHELL.  237 

"  AY  hat  we  have  said  as  to  the  consul  of  the  United  States  applies 
to  consuls  from  all  other  foreign  states.  Xo  such  claim  is,  we 
believe,  set  up  in  any  other  part  of  the  British  dominions.  In  Cliina, 
every  consul  of  every  foreign  power  has  judicial  authority  over  its 
own  subjects  ;  but  this  extra-territorial  jurisdiction  is  the  result  of 
express  treaty,  and  is  conferred  on  them  by  the  enactments  of  the 
legislative  authority  of  each  foreign  state.  The  exaggerated  notion 
as  to  consular  authority  here  has  proliably  arisen  from  the  powers 
conceded  to  them  in  China,  but  which  are  not  conceded  here. 

"  In  a  colony  so  distant  as  Hong-Kong  is  from  London,  convenience 
has  rendered  direct  communication  between  the  colonial  government 
and  consuls  here  on  many  subjects  properly  diplomatic,  convenient 
for  all  parties.  This  has  probably  tended  to  induce  an  overestimate 
of  the  position  of  consuls  here  in  reference  to  judicial  authority.  We 
feel  great  respect  for  the  consuls  in  this  colony,  both  officially  and 
personally,  but  we  must  see  that  the  authority  of  this  court  is  not 
curtailed  beyond  what  the  law  permits.  If  circumstances  render  it 
proper  or  convenient  that  judicial  authority  should  in  this  colony 
vest  in  consuls,  it  must  be  obtained  by  treaty  and  legislation.  This 
court  has  no  power  to  concede  it."  ^ 

1  "As  a  matter  of  law,  foreign  consuls  have  no  jurisdiction  within  the  territory  of 
the  United  States,  except  by  force  of  treaty  stipuhitions.  See  Wlieat.  Int.  Law,  217. 
The  ju<licial  power  of  a  consul  depends  upon  tlie  treaties  between  the  nations  con- 
cerned and  the  laws  of  the  nation  the  consul  represents.  Dainese  v.  Hale,  91  U.  S.  13. 
See  the  Ehcine  Kreplln,  9  Blatchf.  438.  Consular  jurisdiction  depends  on  the  general 
law  of  nations  subsisting  treaties  between  the  two  governments  affected  by  it,  and 
upon  the  obhgatory  force  and  activity  of  the  rule  of  reciprocity.  2  Op.  Atty.-Gen. 
878. 

"  We  conclude,  therefore,  tliat  neither  under  international  law,  nor  under  tlie  statute 
law  of  tlie  United  States,  has  a  consular  officer  of  a  foreign  government  a  right  to  sit 
as  judge  or  arbitrator  within  our  territory,  and  render  decrees  or  orders  affecting 
personal  liberty,  which  orders  or  decrees  the  courts  of  the  United  States  are  authorized 
or  required  to  enforce,  unless  the  consent  of  the  United  States  to  such  jurisdiction 
has  been  given  either  b}'  express  statute  or  treaty  stipulation."  Pardee,  J.,  in  Re 
Aubrey,  1885,  26  Fed.  848,  851. 

For  the  jurisdiction  exercised  by  consuls  in  semi-civilized  and  non-christinn 
countries,  see  Dainese.  v.  U.  S.,  1879,  15  Ct.  CI.  64  (an  elaborate  discussion  of  the 
question)  ;  and  the  following  valuable  opinions  of  C.  Cushing :  7  Op.  Atty.-Gen.  18, 
342.     See  also  U.  S.  Rev.  St.  §§  4083-4086  ;  4087-4089.  —Ed. 


238  TERRITORIAL   JURISDICTION.  [PART  I. 

IN   EE  EOSS. 

United  States  Supreme  Court,  1890. 

(140  United  States,  453.) 

One  John  M,  Eoss  served  in  1880  as  seaman  on  board  the  American 
ship  Bullion,  in  the  waters  of  Japan.  While  the  vessel  lay  at  anchor 
in  the  harbor  of  Yokohama,  he  assaulted  Eobert  Kelley,  second  mate 
of  the  Bullion,  with  a  knife,  inflicting  in  his  neck  a  mortal  wound  of 
which  he  died  in  a  few  minutes,  on  the  deck  of  the  ship.  Eoss  was 
at  once  arrested  by  direction  of  the  master  of  the  vessel,  placed  in 
irons,  taken  ashore,  and  confined  in  jail  at  Yokohama.  The  master 
tiled  a  complaint  with  the  American  Consul  General  of  Yokohama, 
charging  Eoss  with  murder,  and  he  was  tried  and  convicted  thereof 
in  the  American  Consular  Court  of  Japan.  His  sentence  was  com- 
muted b}^  the  President  of  the  United  States  to  life  imprisonment  in 
the  Penitentiary  at  Albany.  In  1890  he  applied  to  the  United  States 
Circuit  Court  for  the  Xorthern  District  of  New  York  for  a  writ  of 
habeas  corpus  for  his  discharge,  which  was  duly  issued.  On  hearing, 
the  court  denied  the  motion  of  the  prisoner  for  his  discharge  and 
remanded  him  to  the  penitentiary.  From  that  order,  an  appeal  was 
taken  to  the  Supreme  Court. ^ 

Mr.  George  W.  Kirchwey,  for  appellant. 

Mr.  Assistant  Attorney-General  Parker,  for  appellee. 

Mr.  Justice  Pield  delivered  the  opinion  of  the  court.  ^ 

The  Circuit  Court  did  not  refuse  to  discharge  the  petitioner  upon 
any  independent  conclusion  as  to  the  validity  of  the  legislation  of 
Congress  establishing  the  consular  tribunal  in  Japan,  and  the  trial 
of  Americans  for  offences  committed  within  the  territory  of  that  coun- 
try, without  the  indictment  of  a  grand  jury,  and  without  a  trial  by  a 
petit  jury,  but  placed  its  decision  upon  the  long  and  uniform  acquies- 
cence by  the  executive,  administrative,  and  legislative  departments  of 
the  government  in  the  validity  of  the  legislation.  Nor  did  the  Cir- 
cuit Court  consider  whether  the  status  of  the  petitioner  as  a  citizen 
of  the  United  States,  or  as  an  American  within  tlie  meaning  of  the 
treaty  with  Japan,  could  be  questioned,  while  he  was  a  seaman  of  an 
American  ship,  under  the  protection  of  the  American  flag,  but  simply 
stated  the  view  taken  on  that  subject  by  the  minister  to  Japan,  the 

1  Shortened  statement  substituted  for  that  of  the  original  report,  —  Ed. 

2  Part  of  the  judgment  is  omitted.  —  Ed. 


CHAP.  II.]  IX   EE   IIOSS.  239 

State  Department,  and  the  President.  Said  the  court:  "During  tlie 
thirty  years  since  the  statutes  conferring  the  judicial  powers  on  min- 
isters and  consuls,  which  have  been  referred  to,  weie  enacted,  that 
jurisdiction  has  been  freely  exercised.  Citizens  of  the  United  States 
have  been  tried  for  serious  offences  before  these  officers,  Avithout  pre- 
liminary indictment  or  a  common-law  jury,  and  convicted  and  pun- 
ished. These  trials  have  been  authorized  by  the  regulations,  orders, 
and  decrees  of  ministers,  and  it  must  be  presumed  that  the  regula- 
tions, orders,  and  decrees  of  ministers  prescribing  the  mode  of  trial 
have  been  transmitted  to  the  Secretary  of  the  State,  and  by  him  been 
laid  before  Congress  for  revision,  as  required  by  law.  Unless  the 
petitioner  was  not  properly  subject  to  this  jurisdiction  because  he  was 
not  a  citizen  of  the  United  States,  his  trial  and  sentence  were  in  all 
respects  modal,  as  well  as  substantial,  regular,  and  valid  under  the 
laws  of  Congress,  according  to  the  construction  placed  upon  these 
statutes  by  the  acquiescence  of  the  executive,  administrative,  and  leg- 
islative departments  of  the  government  for  this  long  period  of  time." 

Under  these  circumstances  the  Circuit  Court  was  of  opinion  that  it 
ought  not  to  adjudge  that  the  sentence  imposed  upon  the  petitioner 
was  utterly  unwarranted  and  void,  when  the  case  was  one  in  which 
his  rights  could  be  adequately  protected  by  this  court,  and  when  a 
decision  by  the  Circuit  Court  setting  him  at  liberty,  although  it  might 
be  reversed,  would  be  practically  irrevocable. 

The  Circuit  Court  might  have  found  an  additional  ground  for  not 
calling  in  question  the  legislation  of  Congress,  in  the  uniform  prac- 
tice of  civilized  governments  for  centuries  to  provide  consular  tribu- 
nals in  other  than  Christian  countries,  or  to  invest  their  consuls  with 
judicial  authority,  which  is  the  same  thing,  for  the  trial  of  their  own 
subjects  or  citizens  for  offences  committed  in  those  countries,  as  well 
as  for  the  settlement  of  civil  disputes  between  them;  and  in  the  uni- 
form recognition,  down  to  the  time  of  the  formation  of  our  govern- 
ment^ of  the  fact  that  the  establishment  of  such  tribunals  was  among 
the  most  important  subjects  for  treaty  stipulations.  This  recognition 
of  their  importance  has  continued  ever  since,  though  the  powers  of 
those  tribunals  are  now  more  carefully  defined  than  formerly.  Dainese 
V.  Hale,  91  U.  S.  13. 

The  practice  of  European  governments  to  send  officers  to  reside  in 
foreign  countries,  authorized  to  exercise  a  limited  jurisdiction  over 
vessels  and  seamen  of  their  country,  to  watch  the  interests  of  their 
countrymen  and  to  assist  in  adjusting  their  disputes  and  protecting 
their  commerce,  goes  back  to  a  very  early  period,  even  preceding  what 
are  termed  the  Middle  Ages.  During  those  ages  these  commercial 
magistrates,  generally  designated  as  consuls,  possessed  to  some  extent 


240  TERRITORIAL   JURISDICTION.  [PART  I. 

a  representative  character,  sometimes  discharging  judicial  and  diplo- 
matic functions.  In  other  than  Christian  countries  they  were,  by 
treaty  stipulations,  usually  clothed  with  authority  to  hear  complaints 
against  their  countrymen  and  to  sit  in  judgment  ujijon  them  when 
charged  with  public  offences.  After  the  rise  of  Islamism,  and  the 
spread  of  its  followers  over  eastern  Asia  and  other  countries  border- 
ing on  the  Mediterranean,  the  exercise  of  this  judicial  authority  be- 
came a  matter  of  great  concern.  The  intense  hostility  of  the  people 
of  Moslem  faith  to  all  other  sects,  and  particularly  to  Christians, 
affected  all  their  intercourse,  and  all  proceedings  had  in  their  tribu- 
nals. Even  the  rules  of  evidence  adopted  by  them  placed  those  of 
different  faith  on  unequal  grounds  in  any  controversy  with  them.  For 
this  cause,  and  by  reason  of  the  barbarous  and  cruel  punishments  in- 
flicted ill  those  countries,  and  the  frequent  use  of  torture  to  enforce 
confession  from  parties  accused,  it  was  a  matter  of  deep  interest  to 
Christian  governments  to  withdraw  the  trial  of  their  subjects,  when 
charged  with  the  commission  of  a  public  offence,  from  the  arbitrary 
and  despotic  action  of  the  local  officials.  Treaties  conferring  such 
jurisdiction  upon  these  consuls  were  essential  to  the  peaceful  resi- 
dence of  Christians  within  those  countries  and  the  successful  prosecu- 
tion of  commerce  with  their  people. 

The  treaty-making  power  vested  in  our  government  extends  to  all 
proper  subjects  of  negotiation  with  foreign  governments.  It  can, 
equally  with  any  of  the  former  or  present  governments  of  Europe, 
make  treaties  providing  for  the  exercise  of  judicial  authority  in  other 
countries  by  its  officers  appointed  to  reside  therein. 

We  do  not  understand  that  any  question  is  made  by  counsel  as  to 
its  iDower  in  this  respect.  His  objection  is  to  the  legislation  by  which 
such  treaties  are  carried  out,  contending  that,  so  far  as  crimes  of  a 
felonious  character  are  concerned,  the  same  protection  and  guarantee 
against  an  undue  accusation  or  an  unfair  trial,  secured  by  the  Consti- 
tution to  citizens  of  the  United  States  at  home,  should  be  enjoyed  by 
them  abroad.  In  none  of  the  laws  which  have  been  passed  by  Con- 
gress to  give  effect  to  treaties  of  the  kind  has  there  been  any  attempt 
to  require  indictment  by  a  grand  jury  before  one  can  be  called  upon 
to  answer  for  a  public  offence  of  that  grade  committed  in  those  coun- 
tries, or  to  secure  a  jury  on  the  trial  of  the  offence.  Yet  tlie  lows  on 
that  subject  have  been  passed  without  objection  to  their  constitution- 
ality. Indeed,  objection  on  that  ground  was  never  raised  in  any 
quarter,  so  far  as  we  are  informed,  until  a  i-ecent  period. 

It  is  now,  however,  earnestly  pressed  by  counsel  for  the  petitioner, 
but  we  do  not  think  it  tenable.  By  the  Constitution  a  government  is 
ordained  and  established  "for  the  United  States  of  America,"  and  not 


CHAP,  II.]  IN   RE   ROSS.  241 

for  countries  outside  of  their  limits.  The  guarantees  it  affords  against 
accusation  of  capital  or  infajnous  crimes,  except  by  indictment  or  pre- 
sentment by  a  grand  j'uy,  and  for  an  impartial  trial  by  a  jury  when 
thus  accused,  apply  only  to  citizens  and  others  within  the  United 
States,  or  who  are  brought  there  for  trial  for  alleged  offences  com- 
mitted elsewhere,  and  not  to  residents  or  temporary  sojourners 
abroad.  Cook  v.  United  States,  1.38  U.  S.  157,  181.  The  Constitu- 
tion can  have  no  operation  in  another  country.  "When,  therefore,  the 
representatives  or  officers  of  our  government  are  permitted  to  exercise 
authority  of  any  kind  in  another  country,  it  must  be  on  such  condi- 
tions as  the  two  countries  may  agree,  the  laws  of  neither  one  being 
obligatory  upon  the  other.  The  deck  of  a  private  American  vessel, 
it  is  true,  is  considered  for  many  purposes  constructively  as  territory 
of  the  United  States,  yet  persons  on  board  of  such  vessels,  whether 
officers,  sailors,  or  passengers,  cannot  invoke  the  protection  of  the 
provisions  referred  to  until  brought  within  the  actual  territorial  boun- 
daries of  the  United  States.  And,  besides,  their  enforcement  abroad 
in  numerous  places,  where  it  would  be  highly  important  to  have  con- 
suls invested  with  judicial  authority,  would  be  impracticable  from  the 
impossibility  of  obtaining  a  competent  grand  or  petit  jury.  The  re- 
quirement of  such  a  body  to  accuse  and  to  try  an  offender  would,  in 
a  majority  of  cases,  cause  an  abandonment  of  all  -prosecution.  The 
framers  of  the  Constitution,  who  were  fully  aware  of  the  necessity  of 
having  judicial  authority  exercised  by  our  consuls  in  non-Christian 
countries,  if  commercial  intercourse  was  to  be  had  with  their  people, 
never  could  have  supposed  that  all  the  guarantees  in  the  administra- 
tion of  the  law  upon  criminals  at  home  were  to  be  transferred  to  such 
consular  establishments,  and  applied  before  an  American  who  had 
committed  a  felony  there  could  be  accused  and  tried.  They  must  have 
known  that  such  a  requirement  would  defeat  the  main  purpose  of  in- 
vesting the  consul  with  judicial  authority.  While,  therefore,  in  one 
aspect  the  American  accused  of  crime  committed  in  those  countries  is 
deprived  of  the  guarantees  of  the  Constitution  against  unjust  accusa- 
tion and  a  partial  trial,  yet  in  another  aspect  he  is  the  gainer,  in  being 
withdrawn  from  the  procedure  of  their  tribunals,  often  arbitrary  and 
oppressive,  and  sometimes  accompanied  with  extreme  cruelty  and  tor- 
ture. Letter  of  Mr.  Cushing  to  Mr.  Calhoun  of  Sept.  29,  1844,  accom- 
panying President's  message  communicating  abstract  of  treaty  with 
China,  Senate  Doc.  58,  28th  Cong.  2d  Sess. ;  Letter  on  Judicial  Ex- 
territorial Rights  by  Secretary  Frelinghuysen  to  Chairman  of  Senate 
Committee  on  Foreign  Relations  of  April  29,  1882,  Senate  Doc.  89, 
47th  Cong.  1st  Sess.;  Phillimore  on  Lit.  Law,  Vol.  2,  part  7;  Halleck 
on  Int.  Law,  c.  41. 

16 


212  TERRITORIAL   JURISDICTION.  [PART  I. 

We  turn  now  to  the  treaties  between  Japan  and  the  United  States. 

The  treaty  of  June  17,  1857,  executed  by  the  consul  general  of  the 
United  States  and  the  governors  of  Simoda,  is  the  one  which  first  con- 
ceded to  the  American  consul  in  Japan  authority  to  try  Americans 
committing  offences  in  that  country.  Article  IV.  of  that  treaty  is  as 
follows : 

"Art.  IV.  Americans  committing  offences  in  Japan  shall  be  tried 
by  the  American  consul  general  or  consul,  and  shall  be  punislied 
according  to  American  laws.  Japanese  committing  offences  against 
Americans  shall  be  tried  by  the  Japanese  authorities  and  punished 
according  to  Japanese  laws."     11  Stat.  723. 

Our  government  has  always  treated  Article  IV.  of  the  treaty  of  1857 
as  contiriuing  in  force,  and  it  is  published  as  such  in  the  United  States 
Consular  Kegulations,  issued  in  1888.  Appendix  Xo.  1,  p.  313.  Its 
official  interpretation  is  found  in  Article  71  of  those  regulations, 
which  declares  that  "consuls  have  exclusive  jurisdiction  over  crimes 
and  offences  committed  by  citizens  of  the  United  States  in  Japan." 
Mr.  Bingham,  our  minister  to  that  country  for  several  years  after  the 
treaty  of  1858,  always  assumed  the  incorporation  into  that  treaty  of 
all  the  provisions  of  the  treaty  of  1857,  or  that  they  were  saved  by  it. 
When  the  prisoner  reached  San  Francisco,  on  his  way  from  Japan  to 
Albany,  he  applied  to  the  Circuit  Court  of  the  United  States  for  a 
writ  of  habeas  corjms,  and  cited  the  sixth  article  of  the  treaty  of  1858, 
insisting  that  it  only  provided  for  the  trial  of  Americans  by  American 
Consular  Courts  in  Japan  for  offences  committed  against  Japanese, 
and  therefore  he  could  not  be  held  to  answer  for  the  murder  of  the 
second  officer  of  the  American  ship  Bnllion,  when  in  Japanese  waters, 
because  he  was  not  a  Japanese  subject.  In  a  communication  made 
under  date  of  June  8,  1881,  by  the  minister  to  the  Secretary  of  State, 
reference  is  made  to  this  position,  and  the  following  language  is  used: 
"Nothing,  in  my  opinion,  could  more  strongly  testify  to  the  utter 
weakness  of  the  claim  made  for  Eoss  against  the  government  than, 
this  attempt  to  limit  the  jurisdiction  of  our  consuls  in  Japan  over 
Americans,  guilty  of  crimes  by  them  committed  within  this  empire, 
to  such  crimes  only  as  they  should  commit  upon  the  persons  of  Jap- 
anese subjects.  According  to  this  logic,  Americans  may  in  Japan 
murder  each  other  and  the  citizens  or  subjects  of  all  lands  save  the 
subjects  of  Japan  with  impunity  —  as  it  is  admitted  by  this  govern- 
ment that  it  cannot  try  an  American  for  any  offence  whatever  —  and 
it  must  also  be  conceded  that  the  tribunals  of  no  other  government 
than  our  own  can  try  Americans  for  crimes  by  them  committed  within 
this  empire.  In  giving  my  reasons  to  the  department  for  sustaining 
the  jurisdiction  of  the  United  States  in  this  case,  and  for  approving 


CHAP.  II.]  •       IN   RE   ROSS.  243 

as  I  did  the  conviction  of  Koss,  in  which  the  consul  general  and  the 
four  associates  who  sat  with  him  had  concurred,  I  cited  Article  IV. 
of  our  convention  of  1857  wnth  Japan,  to  wit:  '  That  Americans  com^ 
mitting  offences  in  Japan  shall  be  tried  by  the  American  consul  gen- 
eral or  consul,  and  shall  be  punished  according  to  American  law.' 
This  provision  of  the  convention  of  1857  and  all  other  provisions 
thereof  were  saved  and  incorporated  in  our  treaty  of  1858  with  Japan, 
Article  XII.  [quoted  above].  You  will  observe  that  ^Ir.  Townsend 
Harris  was  the  consul  general  of  the  United  States  who  negotiated 
both  of  tliese  treaties  with  Japan,  and  that  the  treaty  of  1858  was 
ratified  April  12,  I860,  and  that  thereafter,  to  wit,  June  22,  1860, 
Congress  passed  the  act  to  carry  into  effect  this  treaty  with  Japan, 
and  provided  that  the  minister  and  consuls  of  the  United  States  in 
Japan  be  '  fully  empowered  to  arraign  and  try  in  the  manner  (in  said 
statute  provided)  all  citizens  of  the  United  States  charged  with 
offences  against  law  committed '  (by  them  in  Japan) ;  [sec.  4084, 
Rev.  Stat.];  and  also  by  section  4086  provided  that  the  jurisdiction 
in  both  civil  and  criminal  matters  in  Japan  shall  '  in  all  cases  be 
exercised  and  enforced  in  conformity  with  the  laws  of  the  United 
States,  which  so  far  as  necessary  to  execute  such  treaty  are  extended 
over  all  citizens  of  the  United  States  therein,  and  over  all  others  to 
the  extent  the  terms  of  the  treaty  justify  or  require.'  Here  was  the 
construction  above  stated  by  me  asserted  by  the  same  Senate  which 
ratified  the  treaty,  and  by  the  same  President  who  approved  both  the 
treaty  aud  the  act  of  Congress.  The  President  and  the  department 
have  always  construed  the  treaty  of  1858  as  carrying  with  it  and  in- 
corporating therein  the  fourth  article  and  all  other  provisions  of  the 
convention  of  1857." 

The  legislation  of  Congress  to  carry  into  effect  the  treaty  with 
Japan  is  found  in  the  Revised  Statutes,  in  sections  most  of  W'hich 
apply  equally  to  treaties  with  China,  Siam,  Egypt,  and  Madagascar 
(sees.  4083-4091).  Confining  ourselves  to  the  treaty  w^ith  Japan 
only,  we  find  that  the  legislation  secures  a  regular  and  fair  trial  to 
Americans  committing  offences  within  that  empire. 

It  enacts  that  the  minister  and  consuls  of  the  United  States,  ap- 
pointed to  reside  there,  shall,  in  addition  to  other  powers  and  duties 
imposed  upon  them  respectively,  be  invested  wnth  the  judicial  author- 
ity therein  described,  which  shall  appertain  to  their  respective  offices 
and  be  a  part  of  the  duties  belonging  thereto,  so  far  as  the  same  is 
allowed  by  treaty;  and  empowers  them  to  arraign  and  try,  in  the 
manner  therein  provided,  all  citizens  of  the  United  States  charged 
with  offences  against  law  committed  in  that  country,  and  to  sentence 
such  offenders  as  therein  provided,  and  to  issue  all  suitable  and  neces- 


244  TERRITORIAL  JURISDICTION.  [PART  I. 

sary  process  to  carry  their  authority  into  execution.  It  declares  that 
their  jurisdiction  in  both  criminal  and  civil  matters  shall  in  all  cases 
be  exercised  and  enforced  in  conformity  with  the  laws  of  the  United 
States,  which,  so  far  as  necessary  to  execute  the  treaty  and  suitable 
to  carry  it  into  effect,  are  extended  over  all  citizens  of  the  United 
States  in  Japan,  and  over  all  others  there  to  the  extent  that  the  terms 
of  the  treaty  justify  or  require.  It  also  provides  that  where  such 
laws  are  not  adapted  to  the  object,  or  are  deficient  in  the  provisions 
necessary  to  furnish  suitable  remedies,  the  common  law  and  the  law 
of  equity  and  admiralty  shall  be  extended  in  like  manner  over  such 
citizens  and  others;  and  that  if  neither  the  common  law,  nor  the  law 
of  equity,  or  admiralty,  nor  the  statutes  of  the  United  States,  furnish 
appropriate  and  sufficient  remedies,  the  minister  shall,  by  decrees  and 
regulations,  which  shall  have  the  force  of  law,  supply  such  defects 
and  deficiencies.  Each  of  the  consuls  is  authorized,  upon  facts  within 
his  own  knowledge,  or  which  he  has  good  reason  to  believe  true,  or 
upon  complaint  made  or  information  filed  in  writing  and  authenti- 
cated in  such  way  as  shall  be  prescribed  by  the  minister,  to  issue  his 
warrant  for  the  arrest  of  any  citizen  of  the  United  States  charged 
with  committing  in  the  country  an  offence  against  law;  and  to  arraign 
and  try  any  such  offender;  and  to  sentence  him  to  punishment  in  the 
manner  therein  prescribed. 

The  legislation  also  declares  that  insurrection  or  rebellion  against 
the  government,  with  intent  to  subvert  the  same,  and  murder,  shall 
be  punishable  with  death,  but  that  no  person  shall  be  convicted 
thereof  unless  the  consul  and  his  associates  in  the  trial  all  concur 
in  the  opinion,  and  the  minister  approves  of  the  conviction.  It  also 
provides  that  whenever  in  any  case  the  consul  is  of  opinion  that,  by 
reason  of  the  legal  questions  which  may  arise  therein,  assistance  will 
be  useful  to  him,  or  that  a  severer  punishment  than  previously  speci- 
fied in  certain  cases  will  be  required,  he  shall  summon  to  sit  with 
him  on  the  trial  one  or  more  citizens  of  the  United  States,  not  ex- 
ceeding four,  and  in  capital  cases  not  less  than  four,  who  shall  be 
taken  by  lot  from  a  list  which  has  been  previously  submitted  to  and 
approved  by  the  minister,  and  shall  be  j^ersons  of  good  repute  and 
competent  for  the  duty. 

The  jurisdiction  of  the  consular  tribunal,  as  is  thus  seen,  is  to  be 
exercised  and  enforced  in  accordance  with  the  laws  of  the  United 
States;  and  of  coui"se  in  pursuance  of  them  the  accused  will  have  an 
opportunity  of  examining  the  complaint  against  him,  or  will  be  pre- 
sented with  a  copy  stating  the  offence  he  has  committed,  will  be 
entitled  to  be  confronted  with  the  witnesses  against  him  and  to  cross- 
examine  them,  and  to  have  the  benefit  of  counsel;  and,  indeed,  will 


CHAP.  II.]  IN    RE   EOSS.  245 

have  the  benefit  of  all  the  provisions  necessary  to  secure  a  fair  trial 
before  the  consul  and  his  associates.  The  only  complaint  of  this  leg- 
islation made  by  counsel  is  that,  in  directing  the  trial  to  be  had  be- 
fore the  consul  and  associates  summoned  to  sit  with  him,  it  does  not 
require  a  previous  presentment  or  indictment  by  a  grand  jury,  and 
does  not  give  to  the  accused  a  petit  jury.  The  want  of  such  clauses, 
as  affecting  the  validity  of  the  legislation,  we  have  already  consid- 
ered. It  is  not  pretended  that  the  prisoner  did  not  have,  in  other 
respects,  a  fair  trial  in  the  Consular  Court. 

It  is  further  objected  to  the  proceedings  in  the  consular  court  that 
the  offence  with  which  the  petitioner  was  charged,  having  been  com- 
mitted on  board  of  a  vessel  of  the  United  States  in  Japanese  waters, 
was  not  triable  before  the  Consular  Court;  and  that  the  petitioner, 
being  a  subject  of  Great  Britain,  was  not  within  the  jurisdiction  of 
that  court.     These  objections  we  will  now  proceed  to  consider. 

The  argument  presented  in  support  of  the  first  of  these  positions  is 
briefly  this.  Congress  has  provided  for  the  punishment  of  murder 
committed  upon  the  high  seas,  or  any  arm  or  bay  of  the  sea  within 
the  admiralty  and  maritime  jurisdiction  of  the  United  States,  and  out 
of  the  jurisdiction  of  any  particular  State;  and  has  provided  that  the 
trial  of  all  offences  committed  upon  the  high  seas,  out  of  the  juris- 
diction of  any  particular  State,  shall  be  in  the  district  where  the 
offender  is  found  or  into  which  he  is  first  brought.  The  term  "  high 
seas  "  includes  waters  on  the  sea  coast  without  the  boundaries  of  low- 
water  mark;  and  the  waters  of  the  port  of  Yokohama  constitute, 
within  the  meaning  of  the  statute,  high  seas.  Therefore  it  is  con- 
tended that,  although  the  ship  Bullion  was  at  the  time  lying  in  those 
waters,  the  offence  for  which  the  appellant  was  tried  and  convicted 
was  committed  on  the  high  seas  and  Avithin  the  jurisdiction  of  the 
domestic  tribunals  of  the  United  States,  and  is  not  punishable  else- 
where. In  support  of  this  position  it  is  assumed  that  the  jurisdic- 
tion of  the  Consular  Court  is  limited  to  offences  committed  on  land, 
within  the  territory  of  Japan,  to  the  exclusion  of  offences  committed 
on  waters  within  that  territory. 

There  is,  as  it  seems  to  us,  an  obvious  answer  to  this  argument. 
The  jurisdiction  to  try  offences  committed  on  the  high  seas  in  the 
district  where  the  offender  may  be  found,  or  into  which  he  may  be 
first  brought,  is  not  exclusive  of  the  jurisdiction  of  the  consular  tribu- 
nal to  try  a  similar  offence  when  committed  in  a  port  of  a  foreign 
country  in  which  that  tribunal  is  established,  and  the  offender  is  not 
taken  to  the  United  States.  There  is  no  law  of  Congress  compelling 
the  master  of  a  vessel  to  carry  or  transport  him  to  any  home  port 
when  he  can  be  turned  over  to  a  Consular  Court  having  jurisdiction  of 


246  TERKITORIAL    JURISDICTION.  [PART  I. 

similar  offences  eoramitted  in  tlie  foreign  countn'.  7  Opinions  Attys.- 
Gen.  722.  The  provisions  conferring  jnrisdiction  in  capital  cases 
upon  the  consuls  in  Japan,  when  the  offence  is  committed  in  that 
country,  are  embodied  in  the  Revised  Statutes,  with  the  provisions 
as  to  the  jurisdiction  of  domestic  tribunals  over  such  offences  com- 
mitted on  the  high  seas;  and  those  statutes  were  re-enacted  together, 
and,  as  re-enacted,  went  into  operation  at  the  same  time.  To  both 
effect  must  be  given  in  proper  cases,  where  they  are  applicable.  "We 
do  not  adopt  the  limitation  stated  by  counsel  to  the  jurisdiction  of 
the  consular  tribunal,  that  it  extends  only  to  offences  committed  on 
land.  Keither  the  treaty  nor  the  Eevised  Statutes  to  carry,  them  into 
effect  contain  any  such  limitation.  The  latter  speak  of  offences  com- 
mitted in  the  country  of  Japan —  meaning  within  the  territorial  juris- 
diction of  that  country  —  which  includes  its  ports  and  navigable 
waters  as  well  as  its  lands. 

The  position  that  the  petitioner,  being  a  subject  of  Great  Britain, 
was  not  within  the  jurisdiction  of  the  Consular  Court,  is  more  plau- 
sible, but  admits,  we  think,  of  a  sufficient  answer.  The  national 
character  of  the  petitioner,  for  all  the  purposes  of  the  consular  juris- 
diction, was  determinable  by  his  enlistment  as  one  of  the  crew  of 
the  American  ship  Bullion.  By  such  enlistment  he  becomes  an 
American  seaman  —  one  of  an  American  crew  on  board  of  an  Ameri- 
can vessel  —  and  as  such  entitled  to  the  protection  and  benefits  of  all 
the  laws  passed  by  Congress  on  behalf  of  American  seamen,  and  sub- 
ject to  all  their  obligations  and  liabilities.  Although  his  relations  to 
the  British  Government  are  not  so  changed  that,  after  the  expiration 
of  his  enlistment  on  board  of  the  American  ship,  that  government 
may  not  enforce  his  obligation  of  allegiance,  and  he  on  the  other 
hand  may  not  be  entitled  to  invoke  its  protection  as  a  British  sub- 
ject, that  relation  was  changed  during  his  service  of  seaman  on  board 
of  the  American  ship  under  his  enlistment.  He  could  then  insist 
upon  treatment  as  an  American  seaman,  and  invoke  for  his  protec- 
tion all  the  power  of  the  United  States  which  could  be  called  into 
exercise  for  the  protection  of  seamen  who  were  native  born.  He 
owes  for  that  time  to  the  country  to  which  the  ship  on  which  he  is 
serving  belongs,  a  temporary  allegiance,  and  must  be  held  to  all  its 
responsibilities.  The  question  has  been  treated  more  as  a  political 
one  for  diplomatic  adjustment,  than  as  a  legal  one  to  be  determined 
by  the  judicial  tribunals,  and  has  been  the  subject  of  correspondence 
between  our  government  and  that  of  Great  Britain. 

The  position  taken  by  our  government  is  expressed  in  a  communi- 
cation from  the  Secretary  of  State,  to  the  British  Government,  under 
date  of  June  16,  1881.     It  was  the  assertion  of  a  principle  which  the 


CHAP.  II.]  IN   RE   ROSS.  247 

Secretary  insisted  "is  in  entire  conformity  with  the  principles  of 
English  law  as  applied  to  a  mercantile  service  almost  identical  with 
our  own  in  its  organization  and  regulation.  That  principle  is  that, 
when  a  foreigner  enters  the  mercantile  marine  of  any  nation  and  be- 
comes one  of  the  crew  of  a  vessel  having  undoubtedly  a  national  char- 
acter, he  assumes  a  temporary  allegiance  to  the  flag  vinder  which  he 
serves,  and  in  return  for  the  protection  afforded  him  becomes  subject 
to  the  laws  by  which  that  nation  in  the  exercise  of  an  unquestioned 
authority  governs  its  vessels  and  seamen.  If,  therefore,"  he  con- 
tinued, "the  government  of  the  United  States  has  by  treaty  stipula- 
tion with  Japan  acquired  the  privilege  of  administering  its  own  laws 
upon  its  own  vessels  and  in  relation  to  its  own  seamen  in  Japanese 
territory,  then  every  American  vessel  and  every  seaman  of  its  crew 
are  subject  to  the  jurisdiction  which  by  such  treaty  has  been  trans- 
ferred to  the  government  of  the  United  States.*' 

"  If  Boss  had  been  a  passenger  on  board  of  the  Bullion,  or  if,  resid- 
ing in  Yokohama,  he  had  come  on  board  temporarily  and  had  then 
committed  the  murder,  the  question  of  jurisdiction  would  have  been 
very  different.  But,  as  it  was,  he  was  part  of  the  crew,  a  duly  en- 
rolled seaman  under  American  laws,  enjoying  the  protection  of  this 
government  to  such  an  extent  that  he  could  have  been  protected  from 
arrest  by  the  British  authorities;  and  his  subjection  to  the  laws  of 
the  United  States  cannot  be  avoided  just  at  the  moment  that  it  suits 
his  convenience  to  allege  foreign  citizenship.  The  law  whieh  he  vio- 
lated was  the  law  made  by  the  United  States  for  the  government  of 
United  States  vessels;  the  person  murdered  was  one  of  his  own  supe- 
rior officers  whom  he  had  bound  himself  to  respect  and  obey,  and  it 
is  difficult  to  see  by  what  authority  the  British  Government  can  as- 
sume the  duty  or  claim  the  right  to  vindicate  that  law  or  protect  that 
officer." 

"  The  mercantile  service  is  certainly  a  national  service,  although 
not  quite  in  the  sense  in  which  that  term  would  be  applied  to  the 
national  navy.  It  is  an  organized  service,  governed  by  a  special  and 
complex  system  of  law,  administered  by  national  officers,  such  as  col- 
lectors, harbor  masters,  shipping  masters  and  consuls,  appointed  by 
national  authority.  This  system  of  law  attaches  to  the  vessel  and 
crew  when  they  leave  a  national  port  and  accompanies  them  round 
the  globe,  regulating  their  lives,  protecting  their  persons  and  punish- 
ing their  offences.  The  sailor,  like  the  soldier  during  his  enlistment, 
knows  no  other  allegiance  than  to  the  country  under  whose  flag  he 
serves.  This  law  may  be  suspended  while  he  is  in  the  ports  of  a 
foreign  nation,  but  where  such  foreign  nation  grants  to  the  country 
which  he  serves  the  power  to  administer  its  own  laws  in  such  for- 


248  TERRITORIAL   JURISDICTION.  [PART  I. 

eign  territory,  then  the  law  under  which  he  enlisted  again  becomes 
supreme." 

The  Secretary  concluded  his  communication  with  the  following 
expression  of  the  determination  of  our  government: 

"  So  impressed  is  this  government  with  the  importance  and  pro- 
priety of  these  views,  that  while  it  will  receive  with  the  most  re- 
spectful consideration  the  expression  of  any  different  conviction 
which  her  Britannic  IMajesty's  government  may  entertain,  it  will 
yet  feel  bound  to  instruct  its  consular  and  diplomatic  officers  in  the 
East,  that  in  China  and  Japan  the  judicial  authority  of  the  consuls 
of  the  United  States  will  be  considered  as  extending  over  all  persons 
duly  shipped  and  enrolled  upon  the  articles  of  any  merchant  vessel 
of  the  United  States,  whatever  be  the  nationality  of  such  person. 
And  all  offences  which  would  be  justiciable  by  the  Consular  Courts  of 
the  United  States,  where  the  persons  so  offending  are  native  born  or 
naturalized  citizens  of  the  United  States,  employed  in  the  merchant 
service  thereof,  are  equally  justiciable  by  the  same  Consular  Courts 
in  the  case  of  seamen  of  foreign  nationality." 

The  determination  thus  expressed  was  afterwards  carried  out  by  in- 
corporating the  doctrine  into  the  permanent  regulations  of  the  depart- 
ment for  the  guide  of  the  consuls  of  this  country.     72d  regulation. 

The  views  thus  forcibly  expressed  present  in  our  judgment  the  true 
status  of  the  prisoner  while  an  enlisted  seaman  on  the  American 
vessel,  and  give  effect  to  the  purpose  of  the  treaty  and  the  legisla- 
tion of  Congress.  The  treaty  uses  the  term  "Americans"  in  speak- 
ing of  those  who  may  be  brought  within  the  jurisdiction  of  the 
Consular  Court  for  offences  committed  in  Japan.  The  statute  desig- 
nates them  as  "citizens  of  the  United  States,"  and  yet  extends  the 
laws  of  the  United  States,  so  far  as  they  may  be  necessary  to  execute 
the  treaty  and  are  suitable  to  carry  the  same  into  effect,  not  only  over 
all  citizens  of  the  United  States  in  Japan,  but  also  over  "all  others 
to  the  extent  that  the  terms  of  the  treaty  justify  or  require." 

Reading  the  treaty  and  statute  together  in  view  of  the  purpose  de- 
signed to  be  accomplished,  we  are  satisfied  that  it  was  intended  by 
them  to  bring  within  our  laws  all  who  are  citizens,  and  also  all  who, 
though  not  strictly  citizens,  are  by  their  service  equally  entitled  to 
the  care  and  protection  of  the  government.  It  is  a  canon  of  inter- 
pretation to  so  construe  a  law  or  a  treaty  as  to  give  effect  to  the 
object  designed,  and  for  that  purpose  all  of  its  provisions  must  be 
examined  in  the  light  of  attendant  and  surrounding  circumstances. 
To  some  terms  and  expressions  a  literal  meaning  will  be  given,  and 
to  others  a  larger  and  more  extended  one.  The  reports  of  adjudged 
cases  and  approved  legal  treatises  are  full  of  illustrations  of  the  ap- 


CHAP.  II.]  IN   RE    ROSS.  249 

plication  of  this  rule.  The  inquiry  in  all  such  cases  is  as  to  what 
was  intended  in  the  law  by  the  legislature,  and  in  the  treaty  by  the 
contracting  parties. 

In  Gcofi-oy  V.  Biggs,  133  U.  S.  258,  which  was  before  this  court  at 
the  last  term,  it  was  held  that  the  District  of  Columbia,  as  a  political 
community,  is  one  of  "the  States  of  the  Union,"  within  the  meaning 
of  that  term  as  used  in  the  consular  convention  of  1853  with  France; 
such  construction  being  necessary  to  give  consistency  to  the  provi- 
sions of  the  convention,  and  not  defeat  the  consideration  given  by 
France  for  her  concession  of  certain  rights  to  citizens  of  the  United 
States.  And  in  the  present  case,  to  carry  out  the  intention  of  the 
treaty  and  statute  in  question,  they  will  be  construed  to  apply  to  all 
parties  who  are  by  public  law,  or  the  law  of  the  country,  entitled  to 
be  treated  for  the  time,  from  their  employment  and  service,  as  citi- 
zens. There  are  many  adjudications  to  the  effect  that  such  character 
will  be  ascribed  to  parties  and  they  be  held  liable  to  all  its  conse- 
quences, and  entitled  to  all  its  benefits,  on  other  grounds  than  birth 
or  naturalization. 

A  statute  of  Henry  VIIT.  enacted  that  if  anybody  should  rob  or  take 
"the  goods  of  the  King's  subjects  within  this  realm,"  and  be  found 
guilty,  the  party  robbed  should  have  restitution  of  the  goods.  Of  this 
statute  Sir  Matthew  Hale  said  that  "though  it  speaks  of  the  King's 
subjects,  it  extends  to  aliens  robbed;  for  though  they  are  not  the 
King's  natural  born  subjects,  they  are  the  King's  subjects  when  in 
England,  by  local  allegiance."     1  Hale's  Pleas  of  the  Crown,  p.  542. 

In  United  States  v.  Holmes,  5  Wheat.  412,  which  is  in  point  in 
the  case  before  us,  certain  parties  were  indicted  in  the  Circuit  Court 
of  the  United  States  for  the  District  of  Massachusetts  and  convicted 
of  murder  on  the  high  seas.  It  appeared  that  a  vessel,  apparently 
Spanish,  was  captured  by  privateers  from  Buenos  Ayres,  and  a  prize 
crew  was  put  on  board,  of  whom  the  prisoners  were  a  part.  One  of 
them  was  a  citizen  of  the  United  States  and  the  others  were  for- 
eigners. The  crime  was  committed  by  drowning  the  person,  whose 
death  was  charged,  by  the  prisoners  driving  or  throwing  him  over- 
board. On  motion  for  a  new  trial  certain  questions  arose  on  which 
the  judges  were  divided  in  opinion.  One  of  these  was,  whether  it 
made  any  difference  as  to  the  point  of  jurisdiction,  whether  the  pris- 
oners  or  any  of  them  Avere  citizens  of  the  United  States,  or  that  the 
offence  was  committed,  not  on  board  of  any  vessel,  but  on  the  high 
seas.  The  court  said  that  the  question  contained  two  propositions; 
one  as  to  the  national  character  of  the  offender  and  the  person  against 
Avhom  the  offence  was  committed;  and  second  as  to  the  place  where 
it  was  committed.     In  respect  to  the  first  the  court  was  of  the  opin- 


250  TERRITORIAL   JURISDICTION.  [PART  I. 

ion  that  it  made  no  difference  whether  the  offender  was  a  citizen  of 
the  United  States  or  not;  adding,  "if  it  (the  offence)  be  committed 
on  board  of  a  foreign  vessel  by  a  citizen  of  the  United  States,  or  on 
board  of  a  vessel  of  the  Untied  States  by  a  foreigner,  the  offender  is 
to  be  considered,  pro  hue  vice,  and  in  respect  to  this  subject,  as  be- 
longing to  the  nation  nnder  whose  flag  he  sails." 

The  views  expressed  by  the  Department  of  State,  quoted  above,  are 
in  harmony  with  the  doctrine  uniformly  asserted  by  our  government 
against  the  claim  by  England  of  a  right  to  take  its  countrymen  from 
the  deck  of  an  American  merchant  vessel  and  press  them  into  its 
naval  service.  It  is  a  part  of  our  history  that  the  assertion  of  this 
claim,  and  its  enforcement  in  many  instances,  caused  a  degree  of  irri- 
tation among  our  people  which  no  conduct  of  any  other  country  has 
ever  produced.  Its  enforcement  was  deemed  a  great  indignity  upon 
this  country  and  a  violation  of  our  right  of  sovereignty,  our  vessels 
being  considered  as  parts  of  our  territory.  It  led  to  the  war  of  1812, 
and  although  that  war  closed  without  obtaining  a  relinquishment  of 
the  claim,  its  further  assertion  was  not  attempted.  At  last,  in  a 
communication  by  Mr.  Webster,  then  Secretary  of  State,  to  Lord 
Ashburton,  the  special  British  minister  to  this  country,  on  the  8th 
of  August,  1842,  the  claim  was  repudiated,  and  the  announcement 
made  that  it  would  no  longer  be  allowed  by  our  government  and  must 
be  abandoned.  The  conclusion  of  ]\[r.  Webster's  communication 
bears  upon  the  question  before  us.  After  referring  to  the  claim  of 
Great  Britain,  and  demonstrating  the  injustice  of  the  position  and 
its  violation  of  national  rights,  he  said:  "In  the  early  disputes  be- 
tween the  two  governments,  on  this  so  long-contested  topic,  the  dis- 
tinguished person  to  whose  hands  were  first  intrusted  the  seals  of  this 
department  declared,  that  *  the  simplest  rule  will  be,  that  the  vessel 
being  American  shall  be  evidence  that  the  seamen  on  board  are  such.' 
Fifty  years'  experience,  the  utter  failure  of  many  negotiations,  and  a 
careful  reconsideration  now  had  of  the  whole  subject  at  a  moment 
when  the  passions  are  laid,  and  no  present  interest  or  emergency 
exists  to  bias  the  judgment,  have  convinced  this  government  that 
this  is  not  only  the  simplest  and  best,  but  the  only  rule  which  can 
be  adopted  and  observed  consistently  with  the  rights  and  honor  of 
the  United  States,  and  the  security  of  their  citizens.  That  rule  an- 
nounces, therefore,  what  will  hereafter  be  the  principle  maintained 
by  their  government.  In  every  regularly  documented  American  mer- 
chant vessel,  the  crew  who  navigate  it  will  find  their  protection  in  the 
flag  which  is  over  them."     Webster's  Works,  Vol.  VI.  p.  325. 

This  rule,  that  the  vessel  being  American  is  evidence  that  the  sea- 
men on  board  are  such,  is  now  an  established  doctrine  of  this  country; 


CHAP.  II.]  IN   HE   ROSS.  251 

and  in  support  of  it  there  is  with  the  American  people  no  diversity  of 
opinion  and  can  be  no  division  of  action. 

We  are  satisfied  that  the  true  rule  of  construction  in  the  present 
case  was  adopted  by  the  Department  of  State  in  the  correspondence 
with  the  English  Government,  and  that  the  action  of  the  consular 
tribunal  in  taking  jurisdiction  of  the  prisoner  Ross,  though  an  Eng- 
lish subject,  for  the  offence  committed,  was  authorized.  While  he 
was  an  enlisted  seaman  on  the  American  vessel,  which  floated  the 
American  flag,  he  was,  within  the  meaning  of  the  statute  and  the 
treaty,  an  American,  under  the  protection  and  subject  to  the  laws  of 
the  United  States  equally  with  the  seaman  who  was  native  born.  As 
an  American  seaman  he  could  have  demanded  a  trial  before  the  Con- 
sular Court  as  a  matter  of  right,  and  must  therefore  be  held  subject 
to  it  as  a  matter  of  obligation. 

It  is  true  that  the  occasion  for  consular  tribunals  in  Japan  may 
hereafter  be  less  than  at  present,  as  every  year  that  country  pro- 
gresses in  civilization  and  in  the  assimilation  of  its  system  of  judi- 
cial procedure  to  that  -of  Christian  countries,  as  well  as  in  the 
improvement  of  its  penal  statutes;  but  the  system  of  consular  tribu- 
nals which  have  a  general  similarity  in  their  main  provisions,  is  of 
the  highest  importance,  and  their  establishment  in  other  than  Chris- 
tian countries,  where  our  people  may  desire  to  go  in  pursuit  of  com- 
merce, will  often  be  essential  for  the  protection  of  their  persons  and 
property. 

We  have  not  considered  the  objection  to  the  discharge  of  the  pris- 
oner on  the  ground  that  he  accepted  the  conditional  pardon  of  the 
President.  If  his  conviction  and  sentence  were  void  for  want  of 
jurisdiction  in  the  consular  tribunal,  it  may  be  doubtful  whether  he 
was  estopped,  by  his  acceptance  of  the  pardon,  from  assailing  their 
validity;  but  into  that  inquiry  we  need  not  go,  for  the  Consular  Court 
having  had  jurisdiction  to  try  and  sentence  him,  there  can  be  no  ques- 
tion as  to  the  binding  force  of  the  acceptance. 

Order  affirmed.^ 

1  By  Treaty  of  Nov.  22,  1894  (Articles  17,  19),  the  United  States  consented  to  tlie 
abrogation  of  consular  jurisdiction  in  Japan,  aud  on  July  17,  1899,  sucli  Consular 
Courts  ceased  to  exist. 

As  regard  to  the  nationality  of  a  merchant  vessel  and  the  proof  necessary  to  estab- 
lish its  national  character,  it  was  said  in  The  Brig  Juno,  1901, 36  Ct.  CI.  :  "  Tlie  proof  is 
sufficient  to  show  that  the  brig  was  duly  registered,  and  the  register  sufficiently  estab- 
lishes the  nationality  of  the  vessel." 

As  to  the  papers  carried  by  vessels  as  evidence  of  their  nationality,  see  Hall,  Int. 
Law  (3d  ed.).  Appendix  II;  4tli  ed.  756,  note  1 ;  Taylor's  Int  Law,  §  552  ;  3  Wharton's 
Digest,  §§  408-410.  —  Ed, 


252  TERRITORIAL  JURISDICTION.  [PART  I. 


"THE   CREOLE." 

Commission  of  Claims  under  Convention  between  United  States 
AND  Great  Britain,  February  8,  1853. 

{Report  of  Commission,  241.) 

This  case  was  submitted  to  the  umpire  under  the  circumstances 
named  in  the  preceding  case  of  the  Mermosa,  to  which  reference  is 
made. 

The  facts  in  the  case  are  briefly  set  forth  above,  and  are  also  stated 
at  length  in  the  opinion  of  the  umpire,  so  that  further  statement  of 
them  is  unnecessary. 

Thomas,  agent  and  counsel  for  the  United  States.  Hannen,  agent 
and  counsel  for  Great  Britain.     Bates,  umpire  : 

This  case  having  been  submitted  to  the  umpire  for  his  decision,  he 
hereby  reports  that  the  claim  has  grown  out  of  the  following  circum- 
stances : 

The  American  brig,  Creole,  Captain  Ensor,  sailed  from  Hampton 
Eoads,  in  the  State  of  Virginia,  on  the  27th  of  October,  1841,  having  on 
board  one  hundred  and  thirty-five  slaves,  bound  for  New  Orleans.  On 
the  7th  of  November,  at  nine  o'clock  in  the  evening,  a  portion  of  the 
slaves  rose  against  the  officers,  crew,  and  passengers,  wounding  severely 
the  captain,  the  chief  mate,  and  two  of  the  crew,  and  murdering  one  of 
the  passengers  ;  the  mutineers,  having  got  complete  possession  of  the 
vessel,  ordered  the  mate,  under  threat  of  instant  death  should  he 
disobey  or  deceive  them,  to  steer  for  Nassau,  in  the  island  of  New 
Providence,  where  the  brig  arrived  on  the  9th  of  November,  1841. 

The  American  consul  was  apprised  of  the  situation  of  the  vessel,  and 
requested  the  governor  to  take  measures  to  prevent  the  escape  of  the 
slaves,  and  to  have  the  murderers  secured.  The  consul  received  reply 
from  the  governor,  stating  that  under  the  circumstances  he  would 
comply  with  the  request. 

The  consul  went  on  board  the  brig,  placed  the  mate  in  command  in 
place  of  the  disabled  master,  and  found  the  slaves  all  quiet. 

About  noon  twenty  African  soldiers,  with  an  African  sergeant  and 
corporal,  commanded  by  a  white  officer,  came  on  board.  The  officer 
was  introduced  by  the  consul  to  the  mate  as  commanding  officer  of  the 
vessel. 

The  consul,  on  returning  to  the  shore,  was  summoned  to  attend  the 
governor  and  council,  who  were  in  session,  who  informed  the  consul 
that  they  had  come  to  the  following  decision  : 


CHAP,  ir.]  "  THE   CREOLE."  253 

''1st.  That  the  courts  of  law  have  no  jurisdiction  over  the  alleged 
offences. 

"  2d.  That,  as  an  information  had  been  lodged  before  the  governor, 
charging  that  tlie  crime  of  murder  had  been  committed  on  board  said 
vessel  while  on  the  high  seas,  it  was  expedient  that  the  parties,  impli- 
cated in  so  grave  a  charge,  should  not  be  allowed  to  go  at  large,  and 
that  an  investigation  ought  therefore  to  be  made  into  the  charges,  and 
examinations  taken  on  oath ;  when,  if  it  should  appear  that  the  original 
information  was  correct,  and  that  a  murder  had  actually  been  com- 
mitted, that  all  the  parties  implicated  in  such  crime,  or  other  acts  of 
violence,  should  be  detained  here  until  reference  could  be  made  to  the 
Secretary  of  State  to  ascertain  whether  the  parties  should  be  delivered 
over  to  the  United  States  Government ;  if  not,  how  otherwise  to  dispose 
of  them. 

"3d.  That  as  soon  as  such  examinations  should  be  taken,  all  persons 
on  board  the  Creole,  not  implicated  in  any  of  the  offences  alleged  to 
have  been  committed  on  board  that  vessel,  must  be  released  from 
further  restraint." 

Then  two  magistrates  were  sent  on  board.  The  American  consul 
went  also.  The  examination  was  commenced  on  Tuesday,  the  9th,  and 
was  continued  on  Wednesday,  the  10th,  and  then  postponed  until 
Friday,  on  account  of  the  illness  of  Captain  Ensor.  On  Friday  morning 
it  was  abruptly  and  without  any  explanation,  terminated.  On  the  same 
day,  a  large  number  of  boats  assembled  near  the  Creole,  filled  with 
colored  persons  armed  with  bludgeons.  They  were  under  the  immediate 
command  of  the  pilot  who  took  the  vessel  into  the  port,  who  was  an 
officer  of  the  government,  and  a  colored  man.  A  sloop  or  larger  launch 
was  also  towed  from  the  shore  and  anchored  near  the  brig.  The  sloop 
was  filled  with  men  armed  with  clubs,  and  clubs  were  passed  from  her 
to  the  persons  in  the  boats. 

A  vast  concourse  of  people  were  collected  on  the  shore  opposite  the 
brig. 

During  the  whole  time  the  officers  of  the  government  were  on  board 
they  encouraged  the  insubordination  of  the  slaves. 

The  Americans  in  port  determined  to  unite  and  furnish  the  necessary 
aid  to  forward  the  vessel  and  negroes  to  iSTew  Orleans.  The  consul 
and  the  officers  and  crews  of  two  other  American  vessels  had,  in  fact, 
united  with  the  officers,  men,  and  passengers  of  the  Creole  to  effect 
this.  They  were  to  conduct  her  first  to  Indian  quay,  Florida,  where 
there  was  a  vessel  of  war  of  the  United  States. 

On  Friday  morning,  the  consul  was  informed  that  attempts  would  be 
made  to  liberate  the  slaves  by  force,  and  from  the  mate  he  received 
information  of  the  threatening  state  of  things.     The  result  was,  the 


254  TERRITORIAL   JURISDICTION.  [PART  I. 

attorney-general  and  other  oflBcers  went  on  board  the  Creole.  The 
slaves  identified  as  on  board  the  vessel  concerned  in  the  mutiny,  were 
sent  on  shore,  and  the  residue  of  the  slaves  were  called  on  deck  by 
direction  of  the  attorney-general,  who  addressed  them  in  the  following 
terms  :  "  My  friends,"  or  "  my  men,  you  have  been  detained  a  short 
time  on  board  the  Creole  for  the  purpose  of  ascertaining  what  indi- 
viduals were  concerned  in  the  murder.  They  have  been  identified, 
and  will  be  detained.  The  rest  of  you  are  free,  and  at  liberty  to  go 
on  shore,  and  wherever  you  please." 

The  liberated  slaves,  assisted  by  the  magistrates,  were  then  taken 
on  board  the  boats,  and  when  landed  were  conducted  by  a  vast  assem- 
blage to  the  superintendent  of  police,  by  whom  their  names  were 
registered.  They  were  thus  forcibly  taken  from  the  custody  of  the 
master  of  the  Creole,  and  lost  to  the  claimants. 

I  need  not  refer  to  authorities  to  show  that  slavery,  however  odious 
and  contrary  to  the  principles  of  justice  and  humanity,  may  be  estab- 
lished by  law  in  any  country  ;  and,  having  been  so  established  in  many 
countries,  it  cannot  be  contrary  to  the  law  of  nations. 

The  Creole  was  on  a  voyage,  sanctioned  and  protected  by  the  laws  of 
the  United  States,  and  by  the  law  of  nations.  Her  right  to  navigate 
the  ocean  could  not  be  questioned,  and  as  growing  out  of  that  right,  the 
right  to  seek  shelter  or  enter  the  ports  of  a  friendly  power  in  case  of 
distress  or  any  unavoidable  necessity. 

A  vessel  navigating  the  ocean  carries  with  her  the  laws  of  her  own 
countr\',  so  far  as  relates  to  the  persons  and  property  on  board,  and 
to  a  certain  extent  retains  those  rights  even  in  the  ports  of  the 
foreign  nations  she  may  visit.  Now,  this  being  the  state  of  the  law  of 
nations,  what  were  the  duties  of  the  authorities  at  Nassau  in  regard  to 
the  Creole  ?  It  is  submitted  the  mutineers  could  not  be  tried  by  the 
courts  of  that  island,  the  crime  having  been  committed  on  the  high. 
seas.  All  that  the  authorities  could  lawfully  do,  was  to  comply  with, 
the  request  of  the  American  consul,  and  keep  the  mutineers  in  custody 
until  a  conveyance  could  be  found  for  sending  them  to  the  United 
States. 

The  other  slaves,  being  perfectly  quiet,  and  under  the  command  of 
the  captain  and  owners,  and  on  board  an  American  ship,  the  authorities 
should  have  seen  that  they  were  protected  by  the  law  of  nations;  their 
rights  under  which  cannot  be  abrogated  or  varied,  either  by  the  Eman- 
cipation act  or  any  other  act  of  the  British  Parliament.  Blackstone, 
4th  volume,  speaking  of  the  law  of  nations,  states  :  ''Whenever  any 
question  arises  which  is  properly  the  object  of  its  jurisdiction,  suck 
law  is  here  adopted  in  its  full  extent  by  the  common  law." 

The  municipal  law  of   England  cannot  authorize  a  magistrate  to 


CHAP.  II.]  "  TEE    CREOLE."  255 

violate  the  law  of  nations  by  invading  with  an  armed  force  the  vessel 
of  a  friendly  nation  that  has  committed  no  offence,  and  forcibly  dis- 
solving the  relations  which  by  the  laws  of  his  country  the  captain  is 
bound  to  preserve  and  enforce  on  board. 

These  rights,  sanctioned  by  the  law  of  nations  —  viz. :  the  right  to 
navigate  the  ocean,  and  to  seek  shelter  in  case  of  distress  or  other 
unavoidable  circumstances,  and  to  retain  over  the  ship,  her  cargo,  and 
passengers,  the  laws  of  her  own  country  —  must  be  respected  by  all 
nations  ;  for  no  independent  nation  would  submit  to  their  violation. 
Having  read  all  the  authorities  referred  to  in  the  arguments  on  both 
sides,  1  have  come  to  the  conclusion  that  the  conduct  of  the  authorities 
at  Kassau  was  in  violation  of  the  established  law  of  nations,  and  that 
the  claimants  are  justly  entitled  to  compensation  for  their  losses.  I 
therefore  award  to  the  undermentioned  parties,  their  assigns,  or  legal 
representatives,  the  sums  set  opposite  their  names,  due  on  the  loth  of 
January,  1855.^ 

1  See  elaborate  opinion  on  tlie  same  subject  in  the  brig  Enterprise,  pp.  187-237, 
and  tlie  shorter  one  in  the  Hcrmosa,  pp.  238-240,  Keport  of  the  Commission.  Compare 
In  re  Moncan,  1882,  14  Fed.  44,  and  In  re  Ah  Kee,  1884,  22  Fed.  519. 

In  speaking  of  the  umpire.  Professor  J.  B.  Moore  says  (1  International  Arbitration 
1898,  399-400)  :  "  lu  more  than  one  conjuncture  liis  position,  due  not  only  to  his  exten- 
sive connections  in  business,  but  also  to  his  high  personal  character,  enabled  liim  to  con- 
tribute to  the  good  relations  between  the  country  of  his  birth  and  that  of  his  adoption. 
In  1852  he  gave  the  first  effective  impulse  "  to  the  foundation  on  a  broad  basis  of  the 
Boston  Public  Library  by  a  gift  of  fifty  thousand  dollars,  which  he  afterwards  more 
than  doubled  by  the  purchase  and  donation  of  books."  The  reading  room  in  the  new- 
Boston  Public  Library,  as  was  that  in  the  old,  is  called  Bates  Hall,  in  memory  of 
Joshua  Bates.  .  .  . 

"  As  umpire,  Mr.  Bates,  if  possible,  more  than  fulfilled  the  expectations  formed  of 
him,  and  materially  contributed  to  the  happy  results  of  the  commission.  On  many  of 
the  most  important  and  delicate  questions  before  the  board  it  became  his  duty  to  give 
the  final  decision.  Though  this  circumstance  rendered  his  labors  arduous  and  his 
responsibility  great,  he  decided  all  questions  that  came  before  him  with  promptitude, 
and  with  a  sound,  impartial,  independent  judgment,  and  although  provision  was  made 
by  tlie  convention  for  the  compensation  of  the  umpire,  he  declined  to  receive  for  his 
services  any  remuneration  whatever." 

In  an  action  to  recover  insurance  effected  on  the  slaves  and  cargo  of  the  Creole,  the 
same  doctrine  was  enforced.  Tiie  Supreme  Court  of  Louisiana  held  inter  alia  that 
where  slaves  were  shipped  from  one  part  of  the  United  States  to  another,  and  tiiey 
rose  against  the  officer  of  the  vessel,  and  took  it  into  a  British  port,  they  were  still 
slaves,  though  in  a  state  of  insurrection  ;  that  they  did  not  cease  to  be  the  property  of 
tlieir  owners,  thougli  the  right  of  property  could  not  be  asserted  in  a  British  court,  nor 
enjoyed  within  the  exclusive  influence  of  British  law.  McCarr/o  v.  JV.  0.  his.  Co., 
1845.  10  Rob.  (La.),  202,  312-332. 

Mr.  Dana  criticises  the  decision  of  Mr.  Bates  in  this  case.  "  It  may  be  conceded,  as 
a  general  statement,"  he  says,  "  that  local  authorities  ouglit  to  give  active  aid  to  a 
master  in  defending  and  enforcing,  against  the  inmates  of  his  vessel,  the  rights  with 
which  his  own  nation  lias  intrusted  him,  if  these  rights  are  of  a  character  generally 

16 


256  TERRITOKIAL   JURISDICTION.  [PAET  I. 


Section   11.  —  Right   of  Asylum. 


(a)    In  Legations. 

UNITED   STATES   v.    JEFFERS. 

United  States  Circuit  Coukt  for  District  of  Washington,  1836. 

(4  Cranch,  Circuit  Court,  704.) 

Francis  S.  Key,^  Attorney  of  the  United  States  for  the  District  of 
Columbia,  having  laid  before  the  court  a  letter  to  him  from  the  Sec- 
retary of  State,  wherein  it  appeared  that  a  constable,  Madison  Jeffers, 
had  removed  from  the  house  of  Mr.  Bankhead,  the  British  Secretary  of 
Legation,  a  colored  lad  employed  for  hire  in  his  family  in  order  to 
restore  the  said  lad  to  his  master ;  it  was,  on  the  motion  of  said 
attorney  of  the  United  States,  ordered,  that  the  said  Madison  Jeffers 
be  removed  from  the  office  of  constable  of  the  County  of  Washing- 
ton, unless  he  show  cause  to  the  contrary  on  the  thirty-first  day  of 
May  instant,  provided,  etc.     "  By  order  of  the  court,  May  30th,  1836." 

The  rule  having  been  duly  served,  the  said  Madison  Jeffers  appeared 
on  the  31st  of  ]\Iay  and,  by  way  of  showing  cause,  filed  his  affidavit 
admitting  the  facts,  but  alleging  his  ignorance  of  the  diplomatic 
privileges,  and  his  belief  that  he  was  executing  his  duty  lawfully, 
in  arresting  a  fugitive  slave,  and  disclaiming  all  intentional  disre- 
spect to  Mr.  Bankhead. 

recognized  among  all  nations,  and  not  proliibited  by  the  law  of  the  place.  But  it  may 
well  admit  of  doubt,  whether  the  local  authorities  must  give  active  aid  to  the  master 
against  persons  on  board  his  vessel  wiio  are  doing  no  more  tlian  peacefully  and  quietly 
dissolving,  or  refusing  to  recognize,  a  relation  wiiich  exists  only  by  force  of  the  law  of 
the  nation  to  wiiich  tiie  vessel  belongs,  if  tlie  law  is  peculiar  to  that  nation,  and  one 
■which  the  law  of  the  other  country  regards  as  against  common  right  and  public 
morals.  The  local  authorities  migiit  not  interfere  to  dissolve  such  relations,  where 
the  peace  of  the  port  or  the  public  morals  are  not  put  in  peril ;  but  they  might,  it 
would  seem,  decline  to  lend  force  to  compel  their  continuance."  See,  also,  the  adverse 
criticism  of  Hall  (Int.  Law.  2o9). 

In  the  case  of  the  Forluna,  1803,  5  C.  Rob.  27,  the  ship  was  proceeded  against  for  a 
violation  of  the  blockade  of  the  Weser.  Tiie  master  of  tiie  captured  vessel  gave  as  an 
excuse  for  entering  the  blockaded  place,  the  want  of  provisions,  and  a  strong  westerly 
wind.  Sir  W.  Scott  held  that  "  want  of  provisions  "  was  not  sucli  an  "  imperative 
and  overruling  compulsic.n  "  as  to  excuse  a  breach  of  blockade.  But  on  the  otiier 
ground,  after  further  proof,  tiie  vessel  was  restored.  See  United  States  v.  Dickelinan, 
1875,  92  U.  S.  o20,  infra.  —  Ed. 

^  Better  known  as  author  of  "  The  Star  Spangled  Banner,"  1814.  —  Ed. 


CHAP.  II.]  UNITED    STATES    V.    JEFFERS.  257 

His  counsel,  Mr.  W.  L.  Brent,  contended  that  Jeffers,  as  the  agent 
of  the  owner  of  the  skive,  had  a  right  to  take  Iiim  anywhere ;  and 
also  that,  as  a  constahle,  he  had  a  right  to  take  up  a  runaway,  tliat 
the  diplomatic  ftrivilege  extends  only  to  foreign  ministers  and  upon 
certains  terms  ;  and  not  to  servants  of  a  secretary  of  legation. 

That  the  servant  had  not  heen  registered  according  to  tlie  Act  of 
Congress  of  30th  of  April,  1790,  §  26  (Stat,  at  Large,  112),  and  there- 
fore Jeffers  had  a  right  to  arrest  him ;  because  the  act  of  Congress 
for  punishing  the  violation  of  privilege  does  not  extend  to  those  who 
may  arrest  a  servant  not  registered.  By  not  registering  his  servant, 
the  minister  has  waived  his  privilege,  Seacourt  v.  Bowlney^  1  Wils.,  20. 

The  court  stopped  Mr.  Key  in  reply.  THURSxojf,  J.,  said  he  wished 
no  further  time  or  argument.  He  was  of  opinion  that  Jeffers  should 
be  dismissed  from  oflBce. 

MoRSELL,  J.,  concurred. 

CRAjg^cn,  C.  J.,  would  have  taken  time  to  consider ;  but  said  that 
his  present  opinion  coincided  Avith  that  of  the  court. 

Whereupon  the  court  passed  the  following  order  : 

"  Madison  Jeffers,  upon  whom  a  rule  was  laid  on  tlie  30th  of  May 
last,  to  show  cause  why  he  should  not  be  removed  from  the  office  of 
constable  for  the  county  of  Washington,  upon  the  grounds  therein 
stated,  appeared  and  filed  his  affidavit,  and  the  same  was  read  and 
heard,  and  he  w\as  further  heard  by  his  counsel  whereupon 

"  It  is  considered  by  the  court,  that  the  said  Madison  Jeffers  was 
guilty  of  a  violation  of  the  privileges  of  His  Britannic  Majesty's 
Envoy  Extraordinary  and  Minister  Plenipotentiary,  as  stated, 
in  his  letter  to  the  Secretary  of  State  referred  to  in  the  said 
rule  ;  and  the  said  Madison  Jeffers,  having  shown  no  sufiieient 
cause  to  the  contrary,  it  is  thereupon  considered  by  the  Court, 
this  7tli  day  of  June,  1836,  that  the  said  ]\[adison  Jeffers  be, 
and  he  is  hereby,  removed  from  his  said  office  of  constable  for  the 
county  aforesaid."  ^ 

1  In  1726,  tlie  Duke  of  Ripperdn,  Spanish  Minister  of  Finance  and  Foreign  Affairs 
accused  of  favoring  tlie  interests  of  Holland  and  England,  took  refuge  in  the  British 
legation  in  Madrid.  The  Spanish  government  demanded  delivery  of  his  person  and 
papers,  on  refusal  of  wliich  the  Spanish  authorities  forced  an  entrance  and  arrested 
the  Duke.  This  proceeding  naturally  added  to  the  hard  feeling  already  existing  be- 
tween the  two  countries,  and  two  years  later  war  broke  out  between  them  (Martens, 
Causes  Celebres,  I.  178). 

Vattel,  writing  thirt}'  years  later,  says  of  the  opinion  of  the  Council  of  Castile,  "  On 
ne  pent  rien  dire  de  plus  vrai  et  de  plus  judicieux  sur  cette  matiere." 

Merlin  said,  "  On  voit  par  ces  details,  que  le  droit  d'asyle  est,  a  I'egard  des  hotels 
des  ambassadeurs,  une  source  perpetuelle  de  dissensions  et  de  querelles.  Le  bien  des 
nations  demanderait,  sans  doute,  qu'on  I'abolit  tout-a-fait :  et  cela  parait  d'autant  plus 
raisonable,  qu'il  y  a  plusieurs  e'tats  dans  lesquels  il  n'est  point  connu." 

17 


258  TERRITORIAL  JURISDICTION.  [PART  I. 

(b)  On  Board  Shijys  of  War. 

FORBES   V.    COCHRANE. 

King's  Bench,  1824. 

(2  BarniL-ell  4-  Cresstcell,  448.) 

The  declaration  stated  that  the  plaintiff  was  lawfully  possessed  of 
a  certain  cotton  plantation,  situate  in  parts  beyond  the  seas,  to  wit, 
in  East  Florida,  of  large  value,  and  on  which  plantation  he  employed 
divers  persons,  his  slaves  or  servants.  The  first  count  charged  the 
defendants  with  enticing  the  slaves  away.  The  second  count  stated 
that  the  slaves  or  servants  having  wrongfully  and  against  the  plain- 
In  1747,  a  Swedish  mercliant  of  the  name  of  Springer,  accused  of  high  treason,  took 
refuge  in  the  hotel  of  the  English  Ambassador,  Colonel  Guidockens,  at  Stockholm- 
The  ambassador  refused  to  surrender  him;  the  Swedish  government  surrounded  his 
house  with  troops,  searched  everybody  wiio  entered  it,  and  caused  the  carringe  of  the 
ambassador,  when  he  left  the  hotel,  to  be  followed  by  a  guard.  Guideckens  surren- 
dered Springer  under  a  protest  as  to  tlie  violence  done  to  liis  ambassadorial  privilege. 
England  demanded  reparation,  and  Sweden  steadily  refused  to  give  it,  and  the  ambas- 
sadors from  the  two  courts  were  mutually  withdrawn. 

Ripperda's  case  seems  to  have  settled  the  law  as  regards  asylum,  and  it  is  held  as 
well  established  that  a  diplomatic  agent  has  and  can  have  the  immunity  only  for  him- 
self and  his  diplomatic  or  personal  household,  and  that  he  cannot  use  his  individual 
and  official  right  to  immunity  to  receive  and  protect  from  arrest  citizens  of  tlie  country 
to  which  he  is  accredited. 

In  South  America  it  is  a  general  practice  to  claim  and  exercise  the  right  and  privi- 
lege as  stated  in  above  note,  but  the  practice  is  bad,  unreasonable,  and  so  obviously  a 
violation  of  local  sovereignty  that  it  cannot  claim  recognition  as  a  principle  of  inter- 
national law.  It  is  tolerated,  rather  than  justified,  by  the  exceptional  circumstances 
in  Central  and  South  American  republics. 

"  In  the  United  States,"  says  Mr.  J.  B.  Moore,  "  where  the  supremacy  of  the  local 
law  is  rigorously  maintained,  diplomatic  asylum  has  never  existed.  With  this  excep- 
tion, it  is  believed  that  examples  may  be  found  in  every  independent  American  state. 
In  the  countries  that  were  formerly  Spanish  colonies,  the  practice  may  be  said  to  have 
been  inlierited;  and  in  some  of  them  it  has  been  so  far  extended  to  include  persons 
resting  under  civil  and  commercial  responsibilities.  Tlie  principal  excuse  for  its  con- 
tinuance has  been  found  in  the  constantly  recurring  tumults  wliicli  fill  so  many  pages 
in  the  history  of  American  republics,  and  which,  by  reason  of  their  partisan  complexion, 
Mr.  Seward  once  described  as  representing  'a  chronic  revolutionary  condition.'  " 

Tiie  vexed  question  of  asylums  in  legations  and  consulates  and  in  vessels  has 
been  treated  iiistorically  and  logically  in  three  articles  by  Mr.  Moore,  published  in 
Political  Science  Quarterly  for  1892. 

See,  also,  the  more  recent  article  by  Mr.  Barrj*  Gilbert  on  The  Right  of  Asylum  in 
the  Legations  of  the  United  States  in  Central  and  South  America,  15  Harvard  Law 
Review,  lia-140.  — Ed. 


CHAP.  II.]  FORBES   V.    COCHRANE.  259 

tiff's  will  quitted  and  left  the  plantation  and  the  plaintiff's  service, 
and  gone  into  the  power,  care,  and  keeping  of  the  defendants;  they, 
knowing  them  to  be  the  slaves  or  servants  of  the  plaintiff,  wrongfully 
received  the  slaves  into  their  custody,  and  harbored,  detained,  and 
kept  them  from  the  plaintiff's  service.  The  last  count  was  for  wrong- 
fully harboring,  detaining,  and  keeping  the  slaves  or  servants  of  the 
plaintiff  after  notice  given  to  the  defendants  that  the  slaves  were  the 
plaintiff's  property,  and  request  made  to  the  defendants  by  the  plain- 
tiff to  deliver  them  up  to  him :  plea,  not  guilty.  At  the  trial  before 
Abbott,  C.  J.,  at  the  London  sittings  after  Trinity  term,  1822,  a 
verdict  was  found  for  the  plaintiff,  damages  £3,800,  subject  to  the 
opinion  of  the  court  on  the  following  case. 

The  plaintiff  was  a  British  merchant  in  the  Spanish  provinces  of 
East  and  West  Florida,  where  he  had  carried  on  trade  for  a  great 
many  years,  and  was  principally  resident  at  Pensacola  in  West 
Florida.  East  and  West  Florida  were  part  of  the  dominions  of  the 
king  of  Spain,  and  Spain  was  in  amity  with  Great  Britain.  The 
plaintiff,  before  and  at  the  time  of  the  alleged  grievances,  was 
the  proprietor  and  in  the  possession  of  a  cotton  plantation,  called  San 
Pablo,  lying  contiguous  to  the  river  St.  John's,  in  the  province  of 
East  Florida,  and  of  about  one  hundred  negro  slaves  whom  he  had 
purchased,  and  who  were  employed  by  him  upon  his  plantation.  The 
river  St.  John's  is  about  thirty  or  forty  miles  from  the  confines  of 
Georgia,  one  of  the  United  States  of  America,  which  is  separated 
from  East  Florida  by  the  river  St.  Mary,  and  Cumberland  Island  is  at 
the  mouth  of  the  river  St.  Mary  on  the  side  next  Georgia,  and  forms 
part  of  that  State.  During  the  late  war  between  Great  Britain  and 
America,  in  the  month  of  February,  1815,  the  defendant,  Vice- 
Admiral  Sir  Alexander  Inglis  Cochrane,  was  commander-in-chief  of 
His  Majesty's  ships  and  vessels  on  the  North  American  station.  The 
other  defendant,  Rear- Admiral  Sir  George  Cockburn,  was  the  second 
in  command  upon  the  said  station,  and  his  flag-ship  was  the  Albion. 
The  British  forces  had  taken  possession  of  Cumberland  Island,  and  at 
that  time  occupied  and  garrisoned  the  same.  The  Albion,  Terror 
Bomb,  and  others  of  His  IVIajesty's  ships  of  war,  formed  a  squadron 
under  Sir  George  Cockburn's  immediate  command  off  that  island, 
where  the  headquarters  of  the  expedition  were.^ 

In  the  night  of  the  23d  February,  1815,  a  number  of  the  plaintiff's 
slaves  deserted  from  his  said  plantation,  and  on  the  following  day 
thirty-eight  of  them  were  found  on  board  the  Terror  Bomb,  part  of 
the  squadron  at  Cumberland  Island,  and  entered  on  her  muster-books 
as  refugees  from  St.  John's.     On  the  26th  of  the  same  month  of  Feb- 

1  The  statement  is  condensed  by  omitting  unnecessary   facts.  —  Ed. 


260  TERRITORIAL   JURISDICTION.  [PART  I. 

ruary,  Sir  George  Cockburn  received  from  the  plaintiff  a  memorial. 
The  plaintiff  prayed  "that  the"  defendant,  Sir  G.  Cockburn,  would 
order  the  said  thirty-eight  slaves  to  be  forthwith  delivered  to  him, 
their  lawful  proprietor."  Sir  G.  Cockburn  told  him  he  might  see 
his  slaves,  and  use  any  arguments  and  persuasions  he  chose  to  in- 
duce them  to  return.  The  plaintiff  accordingly  endeavored  to  per- 
suade them  to  go  back  to  his  plantation,  and  no  restraint  was  put 
upon  them,  but  they  refused  to  go.  The  plaintiff  then  urged  his  claim 
very  strongly  to  Sir  G.  Cockburn,  and  said  he  must  get  redress  if  he 
did  not  succeed  in  prevailing  upon  Sir  G.  Cockburn  to  order  them 
back  again,  M'hich  Sir  G.  Cockburn  said  he  could  not  do,  because  they 
were  free  agents  and  might  do  as  they  pleased,  and  that  he  could  not 
force  them  back. 

HoLROYD,  J.^  I  am  also  of  opinion  that  the  plaintiff  is  not  entitled 
to  maintain  the  present  action.  The  declaration  alleges  that  the 
plaintiff  was  the  proprietor,  and  in  the  possession  of  a  cotton  planta- 
tion lying  contiguous  to  the  river  St.  John's,  in  East  Florida,  on 
which  land  he  employed  divers  j^ersons,  his  slaves  or  servants.  The 
plaintiff  therefore  claims  a  general  property  in  them  as  his  slaves 
or  servants,  and  he  claims  this  property,  as  founded,  not  upon  any 
municipal  law  of  the  country  where  he  resides,  but  upon  a  general 
right.  This  action  is  therefore  founded  upon  an  injury  done  to  that 
general  right.  Now  it  appears,  from  the  facts  of  the  case,  that  the 
plaintiff  had  no  right  in  these  persons,  except  in  their  character  of 
slaves,  for  they  were  not  serving  him  under  any  contract;  and,  accord- 
ing to  the  principles  of  the  English  law,  such  a  right  cannot  be  con- 
sidered as  warranted  by  the  general  law  of  nature.  I  do  not  mean  to 
say  that  particular  circumstances  may  not  introduce  a  legal  relation 
to  that  extent;  but  assuming  that  there  may  be  such  a  relation,  it  can 
only  have  a  local  existence,  where  it  is  tolerated  by  the  particular  law 
of  the  place,  to  which  law  all  persons  there  resident  are  bound  to  sub- 
mit. Now  if  the  plaintiff  cannot  maintain  this  action  under  the  gen- 
eral law  of  nature,  independently  of  any  positive  institution,  then  his 
right  of  action  can  be  founded  only  upon  some  right  which  he  has 
acquired  by  the  law  of  the  country  where  he  is  domiciled.  If  he, 
being  a  British  subject,  could  show  that  the  defendant,  also  a  British 
subject,  had  entered  the  country  where  he,  the  plaintiff,  was  domi- 
ciled, and  had  done  any  act  amounting  to  a  violation  of  that  right  to 
the  possession  of  slaves  which  was  allowed  by  the  laws  of  that  coun- 
try, I  am  by  no  means  prepared  to  say  that  an  action  might  not  be 
maintained  against  him.     The  laws  of  England  will  protect  the  rights 

1  Tlie  arguments  of  counsel,  the  opinion  of  Bayley,  J.,  and  part  of  tlie  opinion  of 
Best,  J.,  are  omitted.  —  Ed. 


CHAP.  II.]  FORBES    V.    COCHRANE.  261 

of  British  subjects,  and  give  a  remedy  for  a  grievance  committed  by 
one  British  subject  upon  another,  in  whatever  country  that  may  be 
done.  That,  however,  is  a  very  dilTereut  case  from  the  present. 
Here,  the  plaintiff,  a  British  subject,  was  resident  in  a  Spanish 
colony,  and  perhaps  it  may  be  inferred,  from  what  is  stated  in  the 
special  case,  that,  by  the  law  of  that  colony,  slavery  was  tolerated. 
1  am  of  opinion,  that,  according  to  the  principles  of  the  English  law, 
the  right  to  slaves,  even  in  a  country  where  such  rights  are  recognized 
by  law,  must  be  considered  as  founded  not  upon  the  law  of  nature, 
but  upon  the  particular  law  of  that  country.  And,  supposing  that 
the  law  of  England  would  give  a  remedy  for  the  violation  of  such  a 
right  by  one  British  subject  to  another  (both  being  resident  in  and 
bound  to  obey  the  laws  of  that  country)  still  the  right  to  these  slaves 
being  founded  upon  the  law  of  Spain,  as  applicable  to  the  Floridas, 
must  be  co-extensive  with  the  territories  of  that  State.  I  do  not 
mean  to  say,  that  if  the  plaintiff  having  the  right  to  possess  these 
persons  as  his  slaves  there,  had  taken  them  into  another  place,  where, 
by  law,  slavery  also  prevailed,  his  right  would  not  have  continued  in 
such  a  place,  the  laws  of  both  countries  allowing  a  propert}'  in  slaves. 
The  law  of  slavery  is,  however,  a  law  iti  invitum  ;  and  when  a  party 
gets  out  of  the  territory  where  it  prevails,  and  out  of  the  power  of 
his  master,  and  gets  under  the  protection  of  another  power,  without 
any  wrongful  act  done  by  the  party  giving  that  protection,  the  right 
of  the  master,  which  is  founded  on  the  municipal  law  of  the  particu- 
lar place  only,  does  not  continue,  and  there  is  no  right  of  action 
against  a  party  who  merely  receives  the  slave  in  that  country,  with- 
out doing  any  wrongful  act.  This  has  been  decided  to  be  the  law 
with  respect  to  a  person  who  has  been  a  slave  in  any  of  our  West 
India  colonies  and  comes  to  this  country.  The  moment  he  puts  his 
foot  on  the  shores  of  this  country  his  slavery  is  at  an  end.  Put  the 
case  of  an  uninhabited  island  discovered  and  colonized  by  the  sub- 
jects of  this  country  the  inhabitants  would  be  protected  and  governed 
by  the  laws  of  this  country.  In  the  case  of  a  conquered  country, 
indeed,  the  old  laws  would  prevail,  until  altered  by  the  King  in  coun- 
cil; but  iu  the  case  of  the  newly  discovered  country,  freedom  would 
be  as  much  the  inheritance  of  the  inhabitants  and  their  children  as 
if  they  were  treading  on  the  soil  of  England.  Now,  suppose  a  person 
who  had  been  a  slave  in  one  of  our  own  West  India  settlements,  es- 
caped to  such  a  country,  he  would  thereby  become  as  much  a  freeman 
as  if  he  had  come  into  England.  He  ceases  to  be  a  slave  in  England 
only  because  there  is  no  law  which  sanctions  his  detention  in  slavery ; 
for  the  same  reason  he  would  cease  to  be  a  slave  the  moment  he 
landed   in   the   supposed   newly    discovered    island.      In    this   case, 


262  TERRITORIAL  JURISDICTION.  [PART  I. 

indeed,  the  fugitives  did  not  escape  to  any  island  belonging  to  Eng- 
land, but  they  went  on  board  an  English  ship  (which  for  this  purpose 
may  be  considered  a  floating  island),  and  in  that  ship  they  became 
subject  to  the  English  laws  alone.  They  then  stood  in  the  same 
situation  in  this  respect  as  if  they  had  come  to  an  island  colonized  by 
the  English.  It  was  not  a  wrongful  act  in  the  defendants  to  receive 
them,  quite  the  contrary.  The  moment  they  got  on  board  the  Eng- 
lish ship  there  was  an  end  of  any  right  which  the  plaintiff  had  by  the 
Spanish  laws  acquired  over  them  as  slaves.  They  had  got  beyond  the 
control  of  their  master,  and  beyond  the  territory  where  the  law  recog- 
nizing them  as  slaves  prevailed.  They  were  under  the  protection  of 
another  power.  The  defendants  were  not  subject  to  the  Spanish  law, 
for  they  had  never  entered  the  Spanish  territories,  either  as  friends 
or  enemies.  The  plaintiff  was  permitted  to  see  the  men,  and  to  en- 
deavor to  persuade  them  to  return ;  but  in  that  he  failed.  He  never 
applied  to  be  permitted  to  use  force;  and  it  does  not  appear  that  he 
had  the  means  of  doing  so.  I  think  that  Sir  G.  Cockburn  was  not 
bound  to  do  more  than  he  did;  whether  he  was  bound  to  do  so  much 
it  is  unnecessary  for  me  to  say.  It  was  not  a  wrongful  act  in  him,  a 
British  officer,  to  abstain  from  using  force  to  compel  the  men  to 
return  to  slavery.  It  does  not  appear  that  he  prevented  force  being 
used.  I  do  not  say  that  he  might  not  have  refused,  but  in  fact  there 
was  no  refusal.  I  have  given  my  opinion  upon  this  question,  suppos- 
ing that  there  would  be  a  right  of  action  against  these  defendants,  if 
a  wrong  had  actually  been  done  by  them,  but  I  am  by  no  means  clear 
that,  even  under  such  circumstances,  any  action  would  have  been 
maintainable  against  them  by  reason  of  their  particular  situation 
as  officers  acting  in  discharge  of  a  public  duty,  in  a  place  flagrante 
hello.  I  doubt  whether  the  application  ought  not  to  have  been  made 
in  such  a  case  to  the  governing  powers  of  this  country  for  redress. 
The  cases  from  the  admiralty  courts  are  distinguishable  from  the 
present,  upon  the  grounds  already  stated  by  my  Brother  Bayley.  In 
Madrazo  v.  Willes,  3  B.  &  Aid.  353,  the  plaintiff  was  a  Sjianish  sub- 
ject, and  by  the  law  of  Spain  slavery  and  the  trade  in  slaves  being 
tolerated,  he  had  a  right,  by  the  laws  of  his  own  country,  to  exercise 
that  trade.  The  taking  away  the  slaves  was  nn  active  wrong  done  in 
aggression  upon  rights  given  by  the  Spanish  law.  That  is  very  dif- 
ferent from  requiring,  as  in  this  case,  an  act  to  be  done  against  the 
slaves,  who  had  voluntarily  left  their  master.  When  they  got  out  of 
the  territory  where  they  became  slaves  to  the  plaintiff  and  out  of  his 
power  and  control,  they  were,  by  the  general  law  of  nature,  made 
free,  unless  they  were  slaves  by  the  particular  law  of  the  place  where 
the  defendant  received  them.     They  were  not  slaves  by  the  law  which 


CHAP.  II.]  FORBES   V.   COCHRANE.  263 

prevailed  on  board  the  British  ship  of  war.     I  am,  therefore,  of  opin- 
ion that  the  defendants  are  entitled  to  the  judgment  of  the  court. 

Best,  J.  The  question  is,  were  these  persons  slaves  at  the  time 
when  Sir  G.  Cockbuni  refused  to  do  the  act  which  he  was  desired  to 
do?  I  am  decidedly  of  opinion  that  they  were  then  no  longer  slaves. 
The  moment  they  put  their  feet  on  board  of  a  British  man-of-war,  net 
lying  within  the  waters  of  East  Florida  (where,  undoubtedly,  the  laws 
of  that  country  would  prevail),  those  persons  who  before  had  been 
slaves  were  free.  The  defendants  were  not  guilty  of  any  act  prejudi- 
cial to  the  rights  which  the  plaintiff  alleges  to  have  been  infringed. 
Those  rights  were  at  an  end  before  the  defendants  were  called  upon 
to  act.  Slavery  is  a  local  law,  and,  therefore,  if  a  man  wishes  to  pre- 
serve his  slaves,  let  him  attach  them  to  him  by  affection,  or  make  fast 
the  bars  of  their  prison,  or  rivet  well  their  chains,  for  the  instant 
they  get  beyond  the  limits  where  slavery  is  recognized  by  the  local 
law,  they  have  broken  their  chains,  they  have  escaped  from  their 
prison,  and  are  free.  These  men,  when  on  board  an  English  ship, 
had  all  the  rights  belonging  to  Englishmen,  and  were  subject  to  all 
their  liabilities.  If  they  had  committed  any  offence  they  must  have 
been  tried  according  to  English  laws.  If  any  injury  had  been  done 
to  them  they  would  have  had  a  remedy  by  applying  to  the  laws  of 
this  country  for  redress.  I  think  that  Sir  G.  Cockburn  did  all  that 
he  lawfully  could  do  to  assist  the  plaintiff;  he  permitted  him  to  en- 
deavor to  persuade  the  slaves  to  return;  but  tie  refused  to  apply 
force.  I  think  that  he  might  have  gone  further,  and  have  said  that 
force  should  not  be  used  by  others;  for  if  any  force  had  been  used  by 
the  master  or  any  person  in  his  assistance,  can  it  be  doubted  that  the 
slaves  might  have  brought  an  action  of  trespass  against  the  persons 
using  that  force?  Nay,  if  the  slave,  acting  upon  his  newly  recovered 
right  of  freedom,  had  determined  to  vindicate  that  right,  originally 
the  gift  of  nature,  and  had  resisted  the  force,  and  his  death  had 
ensued  in  the  course  of  such  resistance,  can  there  be  any  doubt  that 
every  one  who  had  contributed  to  that  death  would,  according  to  our 
laws,  be  guilty  of  murder?  That  is  substantially  decided  by  Som- 
mersett's  case,  from  which,  it  is  clear,  that  such  would  have  been  the 
consequence  had  these  slaves  been  in  England;  and  so  far  as  this 
question  is  concerned,  there  is  no  difference  between  an  English  ship 
and  the  soil  of  England;  for  ?.re  not  those  on  board  an  English  ship 
as  much  protected  and  governed  by  the  English  laws  as  if  they  stood 
upon   English  land?  Judgment  for  the  defendants.^ 

^  The  case  usually  cited  on  this  subject  is  The  Schooner  Exrhnn/je  v.  ^fcFad(^on, 
(supra),  which  has  been  repeatedly  affirmed  and  followed  by  the  Supreme  Court. 
The  Sanlissima  Trinidc.d,  1822,  7  Wheat.  352,  infra,  places  the  exemption  that  public 


264  TERRITORIAL   JCRISDICTIOX.  [PART  I. 

(c)  On  Board  2Ierchant  S/iij)s. 

UNITED   STATES   v.    DIEKEL:\rAX. 

SuPKEME  Court  of  the  United  States,  1875. 

(92  United  States,  520.) 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. 

This  suit  was  brought  in  the  Court  of  Claims  under  the  authority 
of  a  joint  resolution  of  both  houses  of  Congress,  passed  May  4,  1870, 
as  follows:  — 

ships  do  undoubtedly  enjoy  upon  tlie  ground  of  comity,  whicli  explanation  is  more  in 
accordance  with  tlie  facts  and  the  inherent  reason  of  the  tiling  tlian  the  fiction  of 
extraterritoriality.  In  the  case  of  John  Brown,  1820,  Sir  William  Scott  (Lord 
Stowell),  wrote  an  elaborate  opinion  for  the  British  foreign  office,  in  whicli  he 
vigorously  maintained  that  the  right  of  asylum,  as  regards  political  refugees,  does  not 
properly  belong  to  ships  of  war.     1  Halleck,  228. 

On  the  other  liand,  a  directly  opposite  view  was  expressed  by  Lord  Palmerston,  in 
1840.     Mr.  Addington,  writing  to  the  Secretary  of  the  Admiralty,  August  4th,  said: — 

"Viscount  Palmerston  directs  me  to  request  that  you  will  acquaint  the  Board  of 
Admiralty  that  his  Lordship  is  of  the  opinion  that  it  would  not  be  right  to  receive  and 
harbor  on  board  a  British  ship  of  war  any  person  flying  from  justice  on  a  criminal 
charge,  or  who  was  escaping  from  the  sentence  of  a  court  of  law.  But  a  British  man- 
of-war  lias  always  and  everywhere  been  considered  a  safe  place  of  refuge  for  persons 
of  ^vllatever  country  or  party  who  had  sought  shelter  under  the  British  flag  from 
persecution  on  account  of  their  political  conduct  or  opinions  ;  and  this  protection  has 
been  equally  offered,  whether  the  refugee  was  escaping  from  the  arbitrary  acts 
of  a  monarchical  government,  or  from  the  lawless  violence  of  a  revolutionary  com- 
mittee. *  *  * 

"  Althougli  the  commander  of  a  ship  of  war  should  not  seek  out  or  invite  political 
refugees,  j-et  he  ought  not  to  turn  away  or  give  up  any  who  may  rench  his  ship  and 
have  obtained  admittance  on  board.  Such  officer  must  of  course  take  care  that  such 
refugees  shall  not  carry  on  from  on  board  his  ship  any  political  correspondence  with 
their  partisans  on  shore,  and  he  ought  to  avail  himself  of  the  earliest  opportunity  to 
send  them  to  some  place  of  safety  elsewhere."  Rep.  of  Royal  Comm.  on  Fug. 
Slaves,  p.  155. 

For  a  full  discussion  of  the  question  of  the  extraterritoriality  of  ships  of  war,  see  the 
separate  reports  of  Lord  Chief  Justice  Cockburn,  and  Mr.  Rothery,  in  the  Report 
of  the  Royal  (Commission  on  Fugitive  Slaves,  1876.  Mr.  Rothery  takes  strong 
ground  against  tlie  right  of  asylurr,  on  such  ships. 

Sir  James  Fitzjamcs  Stephen,  another  member  of  the  commission,  takes  similar 
ground.     Stephen's  History  of  the  Criminal  Law,  II.,  43-58. 

As  to  American  practice,  Attorney-General  Bradford  held,  in  1794,  that  a  "  writ  of 
habeas  corpus  may  be  awarded  to  bring  up  an  American  subject  unlawfully  detained 
on  board  a  foreign  ship  of  war,  the  commander  being  amenable  to  the  usual  jurisdic- 
tion of  the  state  wliere  he  happens  to  be,  and  not  entitled  to  claim  the  extraterritoriality 
■which  is  annexed  to  a  foreign  minister  and  his  domicil."     Wharton's  Digest,  I.,  1.38. 

But  in  1855,  Attorney-General  Cushing  —  a  high  authority — held  that  a  "prisoner 


CHAP.  II.]  UNITED   STATES  V.    DIEKELMAN.  265 

"That  the  claim  of  E.  Diekelman,  a  subject  of  the  King  of  Prussia, 
for  damages  for  an  alleged  detention  of  the  ship  Essex  by  the  military 
authorities  of  the  United  States  at  New  Orleans,  in  the  month  of 
September,  1862,  be  and  is  hereby  referred  to  the  Court  of  Claims  for 
its  decision  in  accordance  with  law,  and  to  award  such  damages  as 
may  be  just  in  the  premises,  if  he  may  be  found  to  be  entitled  to  any 
damages." 

Before  this  resolution  was  passed,  the  matter  of  the  claim  had  been 
the  subject  of  diplomatic  correspondence  between  the  governments  of 
the  United  States  and  Prussia. 

The  following  article,  originally  adopted  in  the  treaty  of  peace 
between  the  United  States  and  Prussia,  concluded  July  11,  1799  (8 
Stat.  IGS),  and  revived  by  the  treaty  concluded  i\Eay  1,  1828  (8  Stat. 
384),  was  in  force  when  the  acts  complained  of  occurred,  to  wit:  — 

"Art.  XIII.  And  in  the  same  case,  if  one  of  the  contracting  parties, 
being  engaged  in  Avar  with  any  other  power,  to  prevent  all  the  diffi- 
culties and  misunderstandings  that  usually  arise  respecting  merchan- 
dise of  contraband,  such  as  arms,  ammunition,  and  military  stores  of 
every  kind,  no  such  articles  carried  in  the  vessels,  or  by  the  subjects 
or  citizens  of  either  party,  to  the  enemies  of  the  other,  shall  be 
deemed  contraband  so  as  to  induce  confiscation  or  condemnation,  and 
a  loss  of  property  to  individuals.  Nevertheless,  it  shall  be  lawful  to 
stop  such  vessels  and  articles,  and  to  detain  them  for  such  length  of 
time  as  the  captors  may  think  necessary  to  prevent  the  inconvenience 
or  damage  that  might  ensue  from  their  proceeding;  paying,  however, 
a  reasonable  compensation  for  the  loss  such  arrest  shall  occasion  to 
the  proprietors;  and  it  shall  further  be  allowed  to  use  in  the  service 
of  the  captors  the  whole  or  any  part  of  the  military  stores  so  detained, 
paying  the  owners  the  full  value  of  the  same,  to  be  ascertained  by  the 
current  price  at  the  place  of  its  destination.  But  in  the  case  sup- 
posed of  a  vessel  stopped  for  articles  of  contraband,  if  the  master  of 
the  vessel  stopped  will  deliver  out  the  goods  supposed  to  be  of  contra- 
band nature,  he  shall  be  admitted  to  do  it,  and  the  vessel  shall  not, 
in  that  case,  be  carried  into  any  port,  nor  further  detained,  but  shall 
be  allowed  to  proceed  on  her  voyage." 

When  the  Essex  visited  New  Orleans,  the  United  States  were  en- 

of  war  on  board  a  foreign  ship  of  war,  or  of  her  prize,  cannot  be  released  by  habeas 
corpus  issuing  from  courts  of  tbe  United  States  or  of  a  particular  State."  And  again, 
in  185f),  "sliips  of  war  enjoy  the  full  rights  of  extraterritoriality  in  foreign  ports  and 
territorial  waters."  (VVimrton's  Digest,  I.,  138.)  It  would  seem  to  follow,  therefore, 
that  right  of  asylum  could  be  granted  on  American  ships  of  war.  In  Soutli  American 
ports  it  lias  frequently  been  done. 

In  1  Halleck,  21G,  note  2,  the  various  instances  are  enumerated  in  which  a  foreign 
ship  of  war  is  subject  to  jurisdiction  of  the  port.  — Ed. 


266  TERRITORIAL   JURISDICTION.  [PART  I. 

gaged  in  the  war  of  the  rebellion.  The  port  of  that  city  was,  at  the 
very  commencement  of  the  war,  placed  under  blockade,  and  closed 
against  trade  and  commercial  intercourse;  but,  on  the  12th  of  May, 
1862,  the  President,  having  become  satisfied  that  the  blockade  might 
"be  safely  relaxed  with  advantage  to  the  interests  of  commerce,"  is- 
sued his  proclamation,  to  the  effect  that  from  and  after  June  1  "com- 
mercial intercourse,  *  *  *  except  as  to  persons,  things,  and  informa- 
tion contraband  of  war,"  might  "  be  carried  on  subject  to  the  laws  of  the 
United  States,  and  to  the  limitations,  and  in  pursuance  of  the  regula- 
tions *  *  *  prescribed  by  the  Secretary  of  the  Treasury,"  and  appended 
to  the  proclamation.  These  regulations  so  far  as  they  are  applicable 
to  the  present  case,  are  as  follows :  — 

"  1.  To  vessels  clearing  from  foreign  ports  and  destined  to  *  *  * 
New  Orleans,  *  *  *  licenses  will  be  granted  by  consuls  of  the  United 
States  upon  satisfactory  evidence  that  the  vessels  so  licensed  will  con- 
vey no  persons,  property,  or  information  contraband  of  war  either  to 
or  from  the  said  ports;  which  licenses  shall  be  exhibited  to  the  col- 
lector of  the  port  to  which  said  vessels  may  be  respectively  bound, 
immediately  on  arrival,  and,  if  required,  to  any  officer  in  charge  of 
the  blockade;  and  on  leaving  either  of  said  ports  every  vessel  will  be 
required  to  have  a  clearance  from  the  collector  of  the  customs  accord- 
ing to  law,  showing  no  violation  of  the  conditions  of  the  license."  32 
Stat.  1264. 

The  Essex  sailed  from  Liverpool  for  New  Ofleans  June  19,  1862, 
and  arrived  August  24.  New  Orleans  was  then  in  possession  of  the 
military  forces  of  the  United  States,  with  General  Butler  in  com- 
mand. The  city  was  practically  in  a  state  of  siege  by  land,  but  open 
by  sea,  and  was  under  martial  law. 

The  commanding  general  was  expressly  enjoined  by  the  government 
of  the  United  States  to  take  measures  that  no  supplies  went  out  of  the 
port  which  could  afford  aid  to  the  rebellion;  and,  pursuant  to  this 
injunction,  he  issued  orders  in  respect  to  the  exportation  of  money, 
goods,  or  property,  on  account  of  any  person  known  to  be  friendly  to 
the  Confederacy,  and  directed  the  custom-house  officers  to  inform  him 
whenever  an  attempt  was  made  to  send  anything  out  which  might  be 
the  subject  of  investigation  in  that  behalf. 

In  the  early  part  of  September,  1862,  General  Butler,  being  still  in 
command,  was  informed  that  a  large  quantity  of  clothing  had  been 
bought  in  lielgiura  on  account  of  the  Confederate  government,  and  was 
lying  at  Matamoras  awaiting  delivery,  because  that  government  had 
failed  to  get  the  means  they  expected  from  New  Orleans  to  pay  for  it; 
and  that  another  shipment,  amounting  to  a  half  million  more,  was 
delayed  in  Belgium  from  coming  forward  because  of  the  non-payment 


CHAP.  II.]  UNITED    STATES    V.    DIEKELMAN.  267 

of  the  first  shipment.  He  was  also  informed  that  it  was  expected  the 
first  payment  -would  go  forward  through  the  agency  of  some  foreign 
consuls;  and  this  information  afterwards  proved  to  be  correct. 

He  was  also  informed  early  in  September  by  the  custom-house  offi- 
cers that  large  quantities  of  silver-plate  and  bullion  were  being 
shipped  on  the  £ssex,  then  loading  for  a  foreign  port,  by  persons,  one 
of  whom  had  declared  himself  an  enemy  of  the  United  States,  and 
none  of  whom  would  enroll  themselves  as  friends;  and  he  thereupon 
gave  directions  that  the  specified  articles  should  be  detained,  and 
their  exportation  not  allowed  until  further  orders. 

On  the  15th  September,  the  loading  of  the  vessel  having  been 
completed,  the  master  applied  to  the  collector  of  the  port  for  his 
clearance,  which  was  refused  in  consequence  of  the  orders  of  General 
Butler,  but  without  any  reasons  being  assigned  by  the  collector.  The 
next  day,  he  was  informed,  however,  that  his  ship  would  not  be 
cleared  unless  certain  specified  articles  which  she  had  on  board  were 
taken  out  and  landed.  Much  correspondence  ensued  between  General 
Butler  and  the  Prussian  consul  at  New  Orleans  in  reference  to  the 
clearance,  in  which  it  was  distinctly  stated  by  General  Butler  that  the 
clearance  would  not  be  granted  until  the  specified  goods  were  landed, 
and  that  it  would  be  granted  as  soon  as  this  should  be  done.  Almost 
daily  interviews  took  place  between  the  master  of  the  vessel  and  the 
collector,  in  which  the  same  statements  were  made  by  the  collector. 
The  master  refused  to  land  the  cargo,  except  upon  the  return  of  his 
bills  of  lading.  Some  of  these  bills  were  returned,  and  the  property 
surrendered  to  the  shipper.  In  another  .case,  the  shipper  gave  an 
order  upon  the  master  for  his  goods,  and  they  were  taken  away  by 
force.  At  a  very  early  stage  in  the  proceeding,  the  master  and  the 
Prussian  consul  were  informed  that  the  objection  to  the  shipment  of 
the  articles  complained  of  was  that  they  were  contraband. 

A  part  only  of  the  goods  having  been  taken  out  of  the  vessel,  a 
clearance  was  granted  her  on  the  6fch  of  October,  and  she  was  per- 
mitted to  leave  the  port  and  commence  her  voyage. 

Upon  this  state  of  facts,  the  Court  of  Claims  gave  judgment  for 
Diekelman,  from  which  the  United  States  took  an  appeal. 

One  nation  treats  with  the  citizens  of  another  only  through  their 
government.  A  sovereign  cannot  be  sued  in  his  own  courts  without 
his  consent.  His  own  dignity,  as  well  as  the  dignity  of  the  nation  he 
represents,  prevents  his  appearance  to  answer  a  suit  against  him  in 
the  courts  of  another  sovereignty,  except  in  performance  of  his  obli- 
gations, by  treaty  or  otherwise,  voluntarily  assumed.  Hence,  a  citi- 
zen of  one  nation  wronged  by  the  conduct  of  another  nation,  must 
seek   redress   through    his   own   government.      His   sovereign   must 


268  TERRITORIAL   JURISDICTION.  [PART  I. 

assume  the  responsibility  of  presenting  his  claim,  or  it  need  not  be 
considered.  If  this  responsibility  is  assumed,  the  claim  may  be 
prosecuted  as  one  nation  proceeds  against  another,  not  by  suit  in  the 
courts,  as  of  right,  but  by  diplomacy,  or,  if  need  be,  by  war.  It  rests 
with  the  sovereign  against  whom  the  demand  is  made  to  determine 
for  himself  what  he  will  do  in  respect  to  it.  He  may  pay  or  reject 
it;  he  may  submit  to  arbitration,  open  his  own  courts  to  suit,  or  con- 
sent to  be  tried  in  the  courts  of  another  nation.  All  depends  upon 
himself. 

In  this  case,  Diekelman,  claiming  to  have  been  injured  by  the 
alleged  wrongful  conduct  of  the  military  forces  of  the  United  States, 
made  his  claim  known  to  his  government.  It  was  taken  into  con- 
sideration, and  became  the  subject  of  diplomatic  correspondence 
between  the  two  nations.  Subsequently,  Congress,  by  joint  resolu- 
tion, referred  the  matter  to  the  Court  of  Claims  "for  its  decision 
according  to  law,"  The  courts  of  the  United  States  were  thus  opened 
to  Diekelman  for  this  proceeding.  In  this  way  the  United  States 
have  submitted  to  the  Court  of  Claims,  and  through  that  court  upon 
appeal  to  us,  the  determination  of  the  question  of  their  legal  liability 
under  all  the  circumstances  of  this  case  for  the  payment  of  damages 
to  a  citizen  of  Prussia  upon  a  claim  originally  presented  by  his  sover- 
eign in  his  behalf.  This  requires  us,  as  we  think,  to  consider  the 
rights  of  the  claimant  under  the  treaty  between  the  two  governments, 
as  well  as  under  the  general  law  of  nations.  For  all  the  purposes  of 
its  decision,  the  case  is  to  be  treated  as  one  in  which  the  government 
of  Prussia  is  seeking  to  enforce  the  rights  of  one  of  its  citizens  against 
the  United  States  in  a  suit  at  law,  which  the  two  governments  have 
agreed  might  be  instituted  for  that  purpose.  We  shall  proceed  upon 
that  hypothesis. 

1.    As  to  the  general  law  of  nations. 

The  merchant  vessels  of  one  country  visiting  the  ports  of  another 
for  the  purposes  of  trade  subject  themselves  to  the  laws  which  govern 
the  port  they  visit,  so  long  as  they  remain;  and  this  as  well  in  war  as 
in  peace,  unless  it  is  otherwise  provided  by  treaty.  The  Exchange  v. 
McFaddon,  7  Cranch,  316.  When  the  Essex  sailed  from  Liverpool, 
the  United  States  were  engaged  in  war.  The  proclamation  under 
which  she  was  permitted  to  visit  New  Orleans  made  it  a  condition  of 
her  entry  that  she  should  not  take  out  goods  contraband  of  war,  and 
that  she  should  not  leave  until  cleared  by  the  collector  of  customs 
according  to  law.  Previous  to  June  1  she  was  excluded  altogether 
from  the  port  by  tlie  blockade.  At  that  date  the  blockade  was  not 
removed,  but  relaxed  only  in  the  interests  of  commerce.  The  war 
still   remained   paramount,  and   commercial  intercourse  subordinate 


CHAP.  II.]  UNITED    STATEvS    V.    DIEKELMAN.  269 

only.  When  the  Essex  availed  herself  of  the  proclamation  and 
entered  the  port,  she  assented  to  the  conditions  imposed,  and  cannot 
complain  if  she  was  detained  on  account  of  the  necessity  of  enforcing 
her  obligations  thus  assumed. 

The  law  by  which  the  city  and  port  were  governed  was  martial  law. 
This  ought  to  have  been  expected  by  Diekelman  when  he  despatched 
his  vessel  from  Liverpool.  The  place  had  been  wrested  from  the 
possession  of  the  enem}^  only  a  few  days  before  the  issue  of  the  proc- 
lamation, after  a  long  and  desperate  struggle.  It  was,  in  fact,  a 
garrisoned  city,  held  as  an  outpost  of  the  Union  army,  and  closely 
besieged  by  land.  So  long  as  it  remained  in  the  possession  of  the 
insurgents,  it  was  to  them  an  important  blockade-running  point,  and 
after  its  capture  the  inhabitants  were  largely  in  sympathy  with  the 
rebellion.  The  situation  was,  therefore,  one  requiring  the  most 
active  vigilance  on  the  part  of  the  general  in  command.  He  was 
especially  required  to  see  that  the  relaxation  of  the  blockade  was  not 
taken  advantage  of  by  the  hostile  inhabitants  to  promote  the  inter- 
ests of  the  enemy.  All  this  was  matter  of  public  notoriety;  and 
Diekelman  ought  to  have  known,  if  he  did  not  in  fact  know,  that 
although  the  United  States  had  to  some  extent  opened  the  port  in  the 
interests  of  commerce,  they  kept  it  closed  to  the  extent  that  was 
necessary  for  the  vigorous  prosecution  of  the  war.  When  he  entered 
the  port,  therefore,  with  his  vessel,  under  the  special  license  of  the 
proclamation,  he  became  entitled  to  all  the  rights  and  privileges  that 
would  have  been  accorded  to  a  loyal  citizen  of  the  United  States 
under  the  same  circumstances,  but  no  more.  Such  restrictions  as  were 
placed  upon  citizens,  operated  equally  upon  him.  Citizens  were  gov- 
erned by  martial  law.  It  was  his  duty  to  submit  to  the  same 
authorit3% 

Martial  law  is  the  law  of  military  necessity  in  the  actual  presence 
of  war.  It  is  administered  by  the  general  of  the  army,  and  is  in  fact 
his  will.  Of  necessity  it  is  arbitrary;  but  it  must  be  obeyed.  Kew 
Orleans  was  at  this  time  the  theatre  of  the  most  active  and  important 
military  operations.  The  civil  authority  was  overthrown.  General 
Butler,  in  command,  was  the  military  ruler.  His  will  was  law,  and 
necessarily  so.  His  first  great  duty  was  to  maintain  on  land  the 
blockade  which  had  theretofore  been  kept  up  by  sea.  The  partial 
opening  of  the  port  toward  the  sea  made  it  all  the  more  important 
that  he  should  bind  close  the  military  lines  on  the  shore  which  he 
held. 

To  this  law  and  this  government  the  Essex  subjected  herself  when 
she  came  into  port.  She  went  there  for  gain,  and  voluntarily  as- 
sumed all  the  chances  of  the  war  into  whose  presence  she  came.     By 


270  TERRITORIAL  JURISDICTION.  [PART  I. 

availing  herself  of  the  privileges  granted  by  the  proclamation,  she, 
in  effect,  covenanted  not  to  take  out  of  the  port  "  persons,  things,  or 
information  contraband  of  war."  What  is  contraband  depends  upon 
circumstances.  Money  and  bullion  do  not  necessarily  partake  of  that 
character;  but,  when  destined  for  hostile  use  or  to  procure  hostile 
supplies,  they  do.  Whether  they  are  so  or  not,  under  the  circum- 
stances of  a  particular  case,  must  be  determined  by  some  one  when  a 
necessity  for  action  occurs.  At  New  Orleans,  when  this  transaction 
took  place,  this  duty  fell  upon  the  general  in  command.  Military 
commanders  must  act  to  a  great  extent  upon  appearances.  As  a  rule, 
they  have  but  little  time  to  take  and  consider  testimony  before  decid- 
ing. Vigilance  is  the  law  of  their  duty.  The  success  of  their  opera- 
tions depends  to  a  great  extent  upon  their  watchfulness. 

General  Butler  found  on  board  this  vessel  articles  which  he  had 
reasonable  cause  to  believe,  and  did  believe,  were  contraband,  because 
intended  for  use  to  promote  the  rebellion.  It  was  his  duty,  there- 
fore, under  his  express  instructions,  to  see  that  the  vessel  was  not 
cleared  with  these  articles  on  board;  and  he  gave  orders  accordingly. 
It  matters  not  now  whether  the  property  suspected  was  in  fact  con- 
traband or  not.  It  is  sufficient  for  us  that  he  had  reason  to  believe, 
and  in  fact  did  believe,  it  to  be  contraband.  No  attempt  has  been 
made  to  show  that  he  was  not  acting  in  good  faith.  On  the  contrary, 
it  is  apparent,  from  the  finding  of  the  court  below,  that  the  existing 
facts  brought  to  his  knowledge  were  such  as  to  require  his  prompt 
and  vigorous  action  in  the  presence  of  the  imminent  danger  with 
which  he  was  surrounded.  Certainly  enough  is  shown  to  make  it 
necessary  for  this  plaintilf  to  prove  the  innocent  character  of  the 
property  before  he  can  call  upon  the  United  States  to  respond  to  him. 
in  damages  for  the  conduct  of  their  military  commander,  upon  whose 
vigilance  they  relied  for  safety. 

Believing,  then,  as  General  Butler  did,  that  the  property  was  con- 
traband, it  was  his  duty  to  order  it  out  of  the  ship,  and  to  withhold 
her  clearance  until  his  order  was  complied  with.  He  was  under  no 
obligation  to  return  the  bills  of  lading.  The  vessel  was  bound  not  to 
take  out  any  contraband  cargo.  She  took  all  the  risks  of  this  obliga- 
tion when  she  assumed  it,  and  should  have  protected  herself  in  her 
contracts  with  shippers  against  the  contingency  of  being  required  to 
unload  after  the  goods  were  on  board.  If  she  failed  in  this,  the  con- 
sequences are  upon  her,  and  not  the  United  States.  She  was  operat- 
ing in  the  face  of  war,  the  chances  of  which  might  involve  her  and 
her  cargo  in  new  complications.  She  voluntarily  assumed  the  risks  of 
her  hazardous  enterprise,  and  must  sustain  the  losses  that  follow. 

Neither  does  it  alfect  the  case  adversely  to  the  United  States  that 


CHAP.  II.]  UNITED    STATES   V.   DIEKELMAN.  271 

the  property  had  gone  on  board  without  objection  from  the  custom- 
house officers  or  the  military  authorities.  It  is  not  shown  that  its 
character  was  known  to  General  Butler  or  the  officers  of  the  custom- 
house before  it  was  loaded.  The  engagement  of  the  vessel  was  not  to 
leave  until  she  had  been  cleared  according  to  law,  and  that  her  clear- 
ance might  be  withheld  until  with  reasonable  diligence  it  could  be 
ascertained  that  she  had  no  contraband  property  on  board.  This  is 
the  legitimate  effect  of  the  provisions  of  the  treasury  regulations, 
entitling  her  to  a  license  "  upon  satisfactory  evidence"  tliat  she  would 
"  convey  no  persons,  property,  or  information  contraband  of  war, 
either  to  or  from  "  the  port;  and  requiring  her  not  to  leave  until  she 
had  "a  clearance  from  the  collector  of  customs,  according  to  law, 
showing  no  violation  of  the  license."  Her  entry  into  the  port  was 
granted  as  a  favor,  not  as  a  right,  except  upon  the  condition  of  assent 
to  the  terms  imposed.  If  the  collector  of  customs  was  to  certify  that 
the  license  she  held  had  not  been  violated,  it  was  his  duty  to  inquire 
as  to  the  facts  before  he  made  the  certificate.  Every  opportunity  for 
the  prosecution  of  this  inquiry  must  be  given.  Under  the  circum- 
stances, the  closest  scrutiny  was  necessary.  If,  upon  the  examination 
preliminary  to  the  clearance,  prohibited  articles  were  found  on  board, 
there  could  be  no  certificate  such  as  was  required,  until  their  removal. 
It  would  then  be  for  the  vessel  to  determine  whether  she  Avould  re- 
move the  goods  and  take  the  clearance,  or  hold  the  goods  and  wait  for 
some  relaxation  of  the  rules  which  detained  her  in  port  as  long  as  she 
had  them  on  board.  General  Butler  only  insisted  upon  her  remain- 
ing until  she  removed  the  property.  She  elected  to  remain.  There 
was  no  time  when  her  clearance  would  not  have  been  granted  if  the 
suspected  articles'were  unloaded. 

We  are  clearly  of  the  opinion  that  there  is  no  liability  to  this 
plaintiff  resting  upon  the  United  States  under  the  general  law  of 
nations. 

2.    As  to  the  treaty. 

The  vessel  was  in  port  when  the  detention  occurred.  She  had  not 
broken  ground,  and  had  not  commenced  her  voyage.  She  came  into 
the  waters  of  the  United  States  while  an  impending  war  was  flagrant, 
under  an  agreement  not  to  depart  with  contraband  goods  on  board. 
The  question  is  not  whether  she  could  have  been  stopped  and  detained 
after  her  voyage  had  been  actually  commenced,  without  compensation 
for  the  loss,  but  whether  she  could  be  kept  from  entering  upon  the 
voyage  and  detained  by  the  United  States  within  their  own  waters, 
held  by  force  against  a  powerful  rebellion,  until  she  had  complied 
with  regulations  adopted  as  a  means  of  safety,  and  to  the  enforcement 
of  which  she  had  assented,  in  order  to  get  there.     In  our  opinion,  no 


272  TERRITORIAL   JURISDICTION.  [PART  I. 

provision  of  the  treaties  in  force  between  the  two  governments  inter- 
feres with  the  riglit  of  the  United  States,  under  the  general  hxw  of 
nations,  to  withhold  a  custom-house  clearance  as  a  means  of  enforcing 
port  regulations. 

Art.  XIII.  of  the  treaty  of  1828  contemplates  the  establishment  of 
blockades,  and  makes  special  provision  for  the  government  of  the 
respective  parties  in  case  they  exist.  The  vessels  of  one  nation  are 
bound  to  respect  the  blockades  of  the  other.  Clearly  the  United 
States  had  the  right  to  exclude  Prussian  vessels,  in  common  with 
those  of  all  other  nations,  from  their  ports  altogether,  by  establishing 
and  maintaining  a  blockade  while  subduing  a  domestic  insarrection. 
The  right  to  exclude  altogether  necessarily  carries  with  it  the  right 
of  admitting  through  an  existing  blockade  upon  conditions,  and  of 
enforcing  in  an  appropriate  manner  the  performance  of  the  conditions 
after  admission  has  been  obtained.  It  will  not  be  contended  that  a 
condition  which  prohibits  the  taking  out  of  contraband  goods  is  un- 
reasonable, or  that  its  performance  may  not  be  enforced  by  refusing 
a  clearance  until  it  has  been  complied  with.  Neither,  in  the  absence 
of  treaty  stipulations  to  the  contrary,  can  it  be  considered  unreason- 
able to  require  goods  to  be  unloaded,  if  their  contraband  character  is 
discovered  after  they  have  gone  on  board.  In  the  existing  treaties 
between  the  two  governments  there  is  no  such  stipulation  to  the  con- 
trary. In  the  treaty  of  1799,  Art.  VI.  is  as  follows:  "That  the  ves- 
sels of  either  party,  loading  within  the  ports  or  jurisdiction  of  the 
other,  may  not  be  uselessly  harassed  or  detained,  it  is  agreed  that  all 
examinations  of»goods  required  by  the  laws  shall  be  made  before  they 
are  laden  on  board  the  vessel,  and  that  there  shall  be  no  examination 
after."  While  other  articles  in  the  treaty  of  1799  were  revived  and 
kept  in  force  by  that  of  1828,  this  was  not.  The  conclusion  is  irre- 
sistible, that  the  high  contracting  parties  were  unwilling  to  continue 
bound  by  such  a  stipulation,  and,  therefore,  omitted  it  from  their  new 
arrangement.  It  would  seem  to  follow,  that,  under  the  existing 
treaty,  the  power  of  search  and  detention  for  improper  practices  con- 
tinued, in  time  of  peace  even,  until  the  clearance  had  been  actually 
perfected  and  the  vessel  had  entered  on  her  voyage.  If  this  be  the 
rule  in  peace,  how  much  more  important  is  it  in  war  for  the  preven- 
tion of  the  use  of  friendly  vessels  to  aid  the  enemy. 

Art.  XIII.  of  the  treaty  of  1799,  revived  by  that  of  1828,  evidently 
has  reference  to  captures  and  detentions  after  a  voyage  has  com- 
menced, and  not  to  detentions  in  port,  to  enforce  port  regulations. 
The  vessel  must  be  "stopped"  in  her  voyage,  not  detained  in  port 
alone.  There  must  be  "captors;"  and  the  vessel  must  be  in  a  con- 
dition to  be  •'  carried  into  port "  or  detained  from  "  proceeding  "  after 


CHAP.  II.]  UNITED   STATES    V.    DIEKELMAN.  273 

she  has  been  "stopped,"  before  tliis  article  can  become  operative. 
Under  its  provisions  the  vessel  "stopped"  might  "deliver  out  the 
goods  supposed  to  be  contraband  of  war,"  and  avoid  further  "deten- 
tion." In  this  case  there  was  no  detention  upon  a  voyage,  but  a 
refusal  to  grant  a  clearance  from  the  port  that  the  voyage  might  be 
commenced.  The  vessel  was  required  to  "deliver  out  the  goods  sup- 
posed to  be  contraband  "  before  she  could  move  out  of  the  port.  Her 
detention  was  not  under  the  authority  of  the  treaty,  but  in  conse- 
quence of  her  resistance  of  the  orders  of  the  properly  constituted  port 
authorities,  whom  she  was  bound  to  obey.  She  preferred  detention 
in  port  to  a  clearance  on  the  conditions  imposed.  Clearly  her  case  is 
not  within  the  treaty.  The  United  States,  in  detaining,  used  the 
right  they  had  under  the  law  of  nations  and  their  contract  with  the 
vessel,  not  one  which,  to  use  the  language  of  the  majority  of  the  Court 
of  Claims,  they  held  under  the  treaty  "by  purchase"  at  a  stipulated 
price. 

As  we  view  the  case,  the  claimant  is  not  "entitled  to  any  damages" 
as  against  the  United  States,  either  under  the  treaty  with  Prussia  or 
by  the  general  law  of  nations. 

The  judgment  of  the  Court  of  Claims  is,  therefore,  reversed,  and  the 
cause  remanded  with  directions  to  dismiss-the  petition.^ 

1  See,  also,  the  Kestor,  1901,  110  Fed.  432. 

In  Sofelo's  Case,  1840,  1  Calvo,  569,  M.  Sotelo,  an  ex-Spanish  Minister  of  State, 
was  taiien  off  tiie  French  mercliant  vessel  L'Ocean  on  reaching  Alicante,  a  Spanish 
port. 

To  tlie  same  effect  was  the  opinion  of  Lord  Aberdeen,  as  appears  from  the  following  : 

"I  am  directed  by  Lord  Aberdeen  to  acquaint  you,  for  the  information  of  tlie  Lords 
Commissioners  of  tlie  Admiralty,  that  there  is  no  stipulation  in  tlie  existing  treaties 
betA'een  tliis  country  and  Spain  which  can  be  deemed  sufficient  to  debar  tlie  Spanish 
government  from  exercising  the  right  which,  in  his  lordsliip's  opinion,  appertains  to 
that  government  of  claiming  its  own  sul)jects  wlien  they  may  be  found  in  a  Spanish 
port  as  passengers  on  board  vessels  hired  to  convey  tlie  mails  between  this  country 
and  tlie  Peninsula."  Viscount  Canning  to  the  Secretary  of  the  Admiralty,  March 
20,  1844  ;  Rep.  of  Royal  Comm.  on  fugitive  slaves,  154. 

The  better  American  precedents  are  in  accord  : 

"Sir, — I  have  to  acknowledge  the  receipt  of  your  No.  316,  of  the  10th  ultimo,  in 
which  you  inclose  copies  of  the  correspondence  between  the  legation  at  Guatemala 
and  Mr.  Leavitt,  the  United  States  consul  at  Managua,  respecting  the  case  of  Jose 
Dolores  Gomez,  and  request  more  definite  instructions  for  sucli  cases. 

"  It  appears  that  Mr.  Gomez,  who  is  said  to  be  a  political  fugitive  from  Nicaragua, 
voluntarily  took  passage  at  San  Jose  de  Guatemala  for  Punta  Arenas,  Costa  Rica,  on 
board  the  Pacific  Mail  steamship  Honduras  with  the  knowledge  tiiat  the  vessel  would 
enter  en  ronte  the  port  of  San  Juan  del  Sur,  Nicaragua. 

"The  government  of  Nicaragua  upon  learning  of  tiiis  fact  ordered  the  commandant 

of  the  port  of  San  Juan  del  Sur  to  arrest  Gomez  upon  the  arrival  of  the  Honduras  at 

tliat  port. 

18 


274  TERRITORIAL   JURISDICTION.  [PART  I. 


Section  12.  —  Extradition  —  Interstate  Rendition. 


UNITED   STATES  v.  RAUSCHER. 

Supreme  Court  of  the  United  States,   1886. 

(119  United  Slates,  407.) 

Mr.  Justice  Miller  delivered  tlie  opinion  of  the  court. 
"  This  case  comes  before  us  on  a  certificate  of  division  of  opinion 
between  tlie  judges  holding  the  Circuit  Court  of  the  United  States 

"  The  minister  for  foreign  affairs  of  Nicaragua  informed  Mr.  Leavitt,  United  States 
consul  at  Managua,  of  tlie  action  of  tlie  government  by  a  telegram,  as  follows : 

"'Government  has  ordered  the  commander  of  port  San  Juan  del  Sur  to  arrest  Jose 
Dolores  Gomez,  a  fugitive  prisoner,  who  is  on  board  of  the  steamer  Honduras,  now  en 
route  to  tliat  port.  I  suppose  the  captnin  will  not  interfere  with  the  action  of  the 
commander,  but  to  avoid  whatever  difficulties  likely  to  arise  I  suggest  you  to  send  a 
telegraphic  message  to  the  captain  of  the  Honduras,  at  San  Juan  del  Sur,  stating  that 
the  order  has  been  issued  by  the  government  and  recommending  him  to  su[)port  tlie 
commander,  as  there  is  no  ground  on  the  part  of  the  captain  to  hinder  the  execution 
of  the  government  order.' 

"  It  appears  that,  before  Mr.  Leavitt  had  an  opportunity  to  act  upon  this  request, 
you  telegraphed  him  as  follows  : 

'•  '  Reported  here  arrest  of  a  transit  passenger  bound  to  Panama  on  board  steamer 
Honduras  at  San  Juan  del  Sur.  Say  respectfully  to  Nicaraguan  minister  of  foreign 
affairs  that  our  Government  never  lias  consented  and  never  will  consent  to  the  arrest 
and  removal  from  an  American  vessel  in  a  foreign  port,  of  any  passenger  in  transit, 
much  less  if  offense  is  political.' 

"It  appears  that  Mr.  Leavitt  declined  to  comply  with  the  request  of  the  minister  of 
foreign  affairs,  and  followed  your  instructions  by  submitting  a  copy  in  writing  to  the 
minister. 

"From  the  brief  outline  given  by  the  consul  of  the  subsequent  proceedings,  it 
appears  tliatithe  government  authorities  at  San  Juan  del  Sur,  upon  the  arrival  of  the 
Honduras  at  that  port,  requested  the  captain  to  deliver  up  Mr.  Gomez.  This  he 
declined  to  do  and  set  sail  without  proper  clearance  papers. 

"  The  consul  reports  that  for  these  offenses  the  captain  has  been  tried  by  the 
Nicaraguan  government  and  found  guilty,  and  altliough  he  has  not  been  able  to  learn 
the  nature  of  the  sentence,  he  is  convinced,  from  the  present  attitude  of  the  govern- 
ment, that  the  sentence  will  be  executed  in  case  of  the  return  of  the  captain  or  the 
vessel  within  the  jurisdiction  of  the  government  of  Nicaragua. 

"  As  the  nature  and  character  of  the  proceedings  against  the  captain  of  the 
Honduras  are  not  known  to  this  department,  a  full  and  detailed  report  should  be 
made  as  early  as  practicable.  It  is  clear  that  Mr.  (iomez  voluntarily  entered  the 
jurisdiction  of  a  country  wliose  laws  he  had  violated.  .  .  . 

"It  may  be  safely  affirmed  that  when  a  merchant  vessel  of  oik'  country  visits  the 


CHAP.   II.]  UNITED    STATES    V.    RAUSCHER.  275 

for  the  Southern  District  of  Xew  York  arising  after  verdict  of  guilty, 
and  before  judgment,  on  a  motion  in  arrest  of  judgment. 

"The  prisoner,  William  Rauscher,  was  indicted  by  a  grand  jury, 
for  that  on  the  9th  day  of  October,  1884,  on  the  high  seas,  out  of  the 
jurisdiction  of  any  particular  state  of  the  United  States,  and  within 
the  admiralty  and  maritime  jurisdiction  thereof,  he,  the  said  William 
Rauscher,  being  then  and  there  second  mate  of  the  ship  J.  F.  Chaj)- 
man,  unlawfully  made  an  assault  upon  Janssen,  one  of  the  crew  of 
the  vessel  of  which  he  was  an  officer,  and  unlawfully  mflicted  upon 
said  Janssen  cruel  and  unusual  punishment.  This  indictment  was 
found  under  §  5347  of  the  Revised  Statutes  of  the  United  States.  *  *  * 

"  The  prisoner  having  been  extradited  upon  a  charge  of  murder  on 
the  high  seas  of  one  Janssen,  under  §  5339  Rev.  Stat.,  had  the  Circuit 
Court  of  the  Southern  District  of  Xew  York  jurisdiction  to  put  him 
to  trial  upon  an  indictment  under  §  5347  Rev.  Stat.,  charging  him  with 
cruel  and  unusual  punishment  of  the  same  man,  he  being  one  of  the 
crew  of  an  Ameiican  vessel  of  which  the  defendant  was  an  officer,  and 

ports  of  another  for  tlie  purposes  of  trade,  it  owes  temporary  allegiance  and  is 
amenable  to  the  jurisdiction  of  that  country,  and  is  subject  to  the  laws  whicii  govern 
tlie  port  it  visits  so  long  as  it  remains,  unless  it  is  otherwise  provided  by  treaty. 

"Any  exemption  or  immunity  from  local  jurisdiction  must  be  derived  from  the 
consent  of  that  country.  No  such  exemption  is  made  in  the  treaty  of  commerce  and 
navigation  concluded  between  this  country  and  Nicaragua  on  the  21st  day  of  June, 
1867."  (Bayard,  Sec.  of  St.,  to  Hall,  March  12,  1884,  in  the  case  of  Gomez,  U.  8. 
Foreign  Relations,  1885,  p.  82.) 

In  the  similar  case  of  Barrundia,  1890,  the  government  of  the  United  States  set  up 
a  different  rule.  Barrundia  was  a  political  refugee  from  Guatemala  who  took 
passage  at  a  Mexican  port,  on  the  Pacific  Mail  Steamship  Acapuico  (American)  for 
Salvador.  The  steamer  was  to  call  on  the  way  at  several  ports  of  Guatemala  ;  and 
on  learning  of  the  movements  of  Barrundia,  the  government  of  Guatemala  proposed 
to  arrest  him.  That  it  could  legally  do  so  was  the  opinion  of  the  American  Minister, 
Mizner,  and  the  American  Consul-General  Hosmer,  and  they  so  advised  the  captain  of 
the  Acapuico,  and  the  authorities  of  Guatemala.  In  the  attempt  to  arrest  Barrundia 
on  board  tlie  steamship,  he  resisted  and  was  killed. 

For  his  part  in  the  affair,  Mr.  Mizner  was  severely  censured,  and  recalled  from  his 
post.  Commander  Keiter  of  the  U.  S.  ship  of  war  Raurfer,  wiio  was  present  in  the 
port  at  the  time,  was  also  sent  into  disgrace  for  not  interfering  to  prevent  the  arrest. 

In  his  dispatch  to  Mr.  Mizner  of  Nov.  18,  1890,  Mr.  Blaine  reviews  the  facts 
and  the  law  of  the  case  ;  much  of  his  argument  has  no  bearing  on  the  case,  and  many 
of  his  citations  go  to  disprove  his  own  view  of  it.  It  is  hardly  too  much  to  say  tliat 
there  is  no  foundation  in  international  law  for  the  position  of  the  United  States 
in  this  affair.  The  only  possible  excuse  for  it  is  the  assertion  that  tlie  Spanish- 
American  states  do  not  possess  all  the  rights  of  sovereign  states,  and  that  there 
should  be  an  exceptional  rule  adopted  in  their  case,  in  regard  to  asylum  on  merchant 
ships,  as  there  is  in  the  case  of  legations. 

In  addition  to  the  authorities  cited  in  note  to  U.  S.  v.  Jeffers,  ante,  see  1  AVharton's 
Digest,  §  104.  — Ed. 


276  TERRITORIAL   JURISDICTION.  [PART  I. 

such  punishment  consisting  of  the  identical  acts  proved  in  the  extra- 
dition proceedings  ? 

"  The  treaty  with  Great  Britain,  under  whicli  the  defendant  was  sur- 
rendered by  that  government  to  ours  upon  a  charge  of  murder,  is  that 
of  August  9, 1842.  *  *  *  Tlie  tentli  article  of  the  treaty  is  as  follows : 
'  It  is  agreed  that  the  United  States  and  her  Britannic  Majesty  shall, 
upon  mutual  requisitions  by  them,  or  then-  ministers,  officers,  or  au- 
thorities, respectively  made,  deliver  up  to  justice  all  persons  who, 
being  charged  with  the  crime  of  murder,  or  assault  with  mtent  to 
commit  murder,  or  piracy,  or  arson,  or  robbery,  or  forgery,  or  the 
utterance  of  forged  paper,  committed  within  the  jurisdiction  of  either, 
shall  seek  an  asylum,  or  shall  be  found,  within  the  territories  of  the 
other :  provided  that  this  shall  only  be  done  upon  such  evidence  of 
criminality  as,  according  to  the  laws  of  the  place  where  the  fugitive 
or  person  so  charged  shall  be  found,  would  justify  his  apprehension 
and  commitment  for  trial,  if  the  crime  or  offense  had  there  been  com- 
mitted ;  and  the  respective  judges  and  other  magistrates  of  the  two 
Governments  shall  have  power,  jurisdiction,  and  authority,  upon  com- 
plaint made  under  oath,  to  issue  a  warrant  for  the  apprehension  of 
the  fugitive  or  person  so  charged,  that  he  may  be  brought  before  such 
judges  or  other  magistrates,  respectively,  to  the  end  that  the  evidence 
of  criminality  may  be  heard  and  considered  ;  and  if,  on  such  hearing, 
the  evidence  be  deemed  sufficient  to  sustain  the  charge,  it  shall  be 
the  duty  of  the  examining  judge  or  magistrate  to  certify  the  same  to 
the  proper  executive  authority,  that  a  warrant  may  issue  for  the 
surrender  of  such  fugitive.' 

"  Xot  only  has  the  general  subject  of  the  extradition  of  persons, 
charged  with  crime  in  one  country,  who  have  fled  to  and  sought 
refuge  in  another,  been  matter  of  much  consideration  of  late  years  by 
the  executive  departments  and  statesmen  of  the  governments  of  the 
civilized  portion  of  the  world,  by  various  publicists  and  writers  on 
international  law,  and  by  specialists  on  that  subject,  as  well  as  by  the 
courts  and  judicial  tribunals  of  different  countries,  but  the  precise 
questions  arising  under  this  treaty,  as  presented  by  the  certificate  of 
the  judges  in  this  case,  have  recently  been  very  much  discussed  in 
this  country,  and  hi  Great  Britain. 

"  It  is  only  in  modern  times  that  the  nations  of  the  earth  have  im- 
posed upon  themselves  the  obligation  of  delivering  up  these  fugitives 
from  justice  to  the  states  where  their  crimes  were  committed,  for 
trial  and  punishment.  This  has  been  done  generally  by  treaties  made 
by  one  independent  government  with  another.  Prior  to  these  trea- 
ties, and  apart  from  them,  it  may  be  stated  as  the  general  result  of 
the  writers  upon  international  law,  that  there  was  no  well-defijied 


CHAP.  II.]  UNITED    STATES    V.    RAUSCHER.  277 

oblisi^ation  on  one  country  to  deliver  np  snch  fugitives  to  another,  and 
tliough  such  delivery  was  often  made,  it  -was  upon  the  principle  of 
comity,  and  within  the  discretion  of  the  goveriniient  whose  action 
was  invoked ;  and  it  has  never  been  recognized  as  among  those  obli- 
gations of  one  government  towards  another  which  rest  upon  estab- 
lished principles  of  international  law. 

"  Whether  in  the  United  States,  in  the  absence  of  any  treaty  on 
the  subject  with  a  foreign  nation  from  whose  justice  a  fugitive  may 
be  found  in  one  of  the  states,  and  in  the  absence  of  any  act  of  Con- 
gress upon  the  subject,  a  state  can,  through  its  own  judiciary  or  execu- 
tive, surrender  him  for  trial  to  such  foreign  nation,  is  a  question 
which  has  been  under  consideration  by  the  courts  of  this  country 
without  any  very  conclusive  result. 

'•  In  the  case  of  Daniel  Washburn,  4  Johns.  Ch.  106  ;  S.  C.  8  Am. 
Dec.  548,  ■who  was  arrested  on  a  charge  of  theft  committed  in  Canada, 
and  brought  before  Chancellor  Kent  upon  a  writ  of  habeas  corpus^  that 
distinguished  jurist  held  that,  irrespective  of  all  treaties,  it  was  the 
duty  of  a  state  to  surrender  fugitive  criminals.  The  doctrine  of  this 
obligation  was  presented  with  great  ability  by  that  learned  jurist ;  but 
shortly  afterward  Chief  Justice  Tilghman,  in  the  case  of  Short  v. 
Deacon,  10  S.  &  E.  125,  in  the  Supreme  Court  of  Pennsylvania,  held 
the  contrary  opinion — that  the  delivery  up  of  a  fugitive  was  an  affair 
of  the  executive  branch  of  the  national  Government,  to  which  the 
demand  of  the  foreign  power  niust  be  addressed  ;  that  judges  could 
not  legally  deliver  np,  nor  could  they  command  the  executive  to  do  so  ; 
and  that  no  magistrate  in  Pennsylvania  had  the  right  to  cause  a  person 
to  be  arrested  in  order  to  afford  the  President  of  the  United  States  an 
opportunity  to  deliver  him  up,  because  the  President  had  already 
declared  he  would  not  do  so. 

"  There  can  be  little  doubt  of  the  soundness  of  the  opinion  of 
Chief-Justice  Taney,  that  the  power  exercised  by  the  governor  of 
Vermont  is  a  part  of  the  foreign  intercourse  of  this  country,  which 
has  undoubtedly  been  conferred  upon  the  Federal  government ;  and 
that  it  is  clearly  included  in  the  treaty  making  power  and  the  cor- 
responding power  of  appointing  and  receiving  ambassadors  and  other 
public  ministers.  There  is  no  necessity  for  the  states  to  enter  upon 
the  relations  with  foreign  nations  wdiich  are  necessarily  implied  in 
the  extradition  of  fugitives  from  justice  found  within  the  limits  of 
the  state,  as  there  is  none  why  they  should,  in  their  own  name,  make 
demand  upon  foreign  nations  for  the  surrender  of  such  fugitives. 

"  At  this  time  of  day,  and  after  the  repeated  examinations  which 
have  been  made  l)y  this  court  into  the  powers  of  the  Federal  govern- 
ment to  deal  with  all  such  international  questions  exclusively,  it  can 


278  TERRITORIAL    JURISDICTION.  [PART  I. 

hardly  be  admitted  that,  even  in  the  absence  of  treaties  or  acts  of 
Congress  on  the  subject,  the  extradition  of  a  fugitive  from  justice 
can  become  tlie  subject  of  negotiation  beti^'een  a  state  of  tliis  Union 
and  a  foreign  government. 

"  Fortunately,  this  question,  with  others  which  might  arise  m  the 
absence  of  treaties  or  acts  of  Congress  on  the  subject,  is  now  of 
very  little  importance,  since,  with  nearly  all  the  nations  of  the 
world  with  whom  our  relations  are  such  that  fugitives  from  justice 
may  be  found  within  their  dominions  or  within  ours,  we  have  trea- 
ties which  govern  the  rights  and  conduct  of  the  parties  in  such 
cases.  These  treaties  are  also  supplemented  by  acts  of  Congress, 
and  both  are  in  their  nature  exclusive. 

"  The  case  we  have  under  consideration  arises  under  one  of  these 
treaties  made  between  the  United  States  and  Great  Britain,  the 
country  with  which,  on  account  of  our  intimate  relations,  the  cases 
requiring  extradition  are  likely  to  be  most  ntimerous.  This  treaty 
of  1842  is  supplemented  by  the  acts  of  Congress  of  August  12,  1848, 
9  Stat.,  302,  and  March  3,  1869, 15  Stat.,  337,  the  provisions  of  which 
are  embodied  in  §§  5270,  5272  and  5275  of  the  TJevised  Statutes, 
under  Title  LXVI.,  Extradition.*  *  * 

"The  treaty  of  1842  being,  therefore,  the  supreme  law  of  the  land, 
which  the  cotirts  are  bound  to  take  judicial  notice  of  and  to  enforce 
in  any  appropriate  proceeding  the  rights  of  persons  growing  out  of 
that  treaty,  we  proceed  to  inquire,  in  the  first  place,  so  far  as  per- 
tinent to  the  question  certified  by  the  circuit  jitdges,  into  the  true 
construction  of  the  treaty.  We  have  already  seen  that,  according 
to  the  doctrine  of  publicists  and  writers  on  international  law,  the 
country  receiving  the  offender  against  its  laws  from  another  country 
had  no  right  to  proceed  against  him  for  any  other  offense  than  that 
for  which  he  had  been  delivered  up.  This  is  a  principle  which  com- 
mends itself  as  an  appropriate  adjunct  to  the  discretionary  exercise 
of  the  power  of  rendition  because  it  can  hardly  be  supposed  that 
a  government  which  was  under  no  treaty  obligation  nor  any  absohite 
obligation  of  public  duty  to  seize  a  person  who  had  found  an  asy- 
lum within  its  bosom  and  titrn  him  over  to  another  country  for  trial, 
would  be  willing  to  do  this,  unless  a  case  was  made  of  some  spe- 
cific offense,  of  a  character  which  justified  the  government  in  depriv- 
ing the  party  of  his  asylum.  It  is  unreasonable  that  the  country  of 
the  asylum  should  be  expected  to  deliver  tip  stich  person  to  be  dealt 
with  by  the  demanding  government  without  any  limitation,  implied 
or  otherwise,  upon  its  prosecution  of  the  party.  In  exercising  its 
discretion,  it  might  be  verj'  willing  to  deliver  up  offenders  against 
such  laws  as  were  essential  to  the  protection  of  hfe,  liberty  and 


CHAP,  ir.]  UNITED    STATES    V.    RAUSCHER.  279 

person,  while  it  Avould  not  be  willing  to  do  this  on  account  of  minor 
misdemeanors  or  of  a  certain  class  of  political  offenses  in  which  it 
would  liave  no  interest  or  sympathy.  Accordingly,  it  has  been  the 
policy  of  all  governments  to  grant  an  asylum  to  persons  who  have 
fled  from  their  homes  on  account  of  political  disturbances  and  who 
might  be  there  amenable  to  laws  framed  with  regard  to  such  sub- 
jects, and  to  the  personal  allegiance  of  the  party.  In  many  of  the 
treaties  of  extradition  between  the  civilized  nations  of  the  world, 
there  is  an  express  exclusion  of  offenders  against  such  laws,  and  in 
none  of  them  is  this  class  of  offenses  mentioned  as  being  the  founda- 
tion of  extradition  proceedings.  Indeed,  the  enumeration  of  offenses 
in  most  of  these  treaties,  and  especially  in  the  treaty  now  under  con- 
sideration, is  so  specific,  and  marked  by  such  a  clear  line  in  regard 
to  the  magnitude  and  importance  of  those  offenses,  that  it  is  impos- 
sible to  give  any  other  interpretation  to  it  than  that  of  the  exclusion 
of  the  right  of  extradition  for  any  others. 

"  It  is,  therefore,  very  clear  that  this  treaty  did  not  intend  to  depart 
in  this  respect  from  the  recognized  public  law  which  had  prevailed 
in  the  absence  of  treaties,  and  that  it  was  not  intended  that  this 
treaty  should  be  used  for  any  other  purpose  than  to  secure  the  trial 
of  the  person  extradited  for  one  of  the  offenses  enumerated  in  the 
treaty.  This  is  not  only  apparent  from  the  general  principle  that 
the  specific  enumeration  of  certain  matters  and  things  implies  the 
exclusion  of  all  others,  but  the  entire  face  of  the  treaty,  including 
the  processes  by  which  it  is  to  be  carried  into  effect,  confirms  this 
view  of  the  subject.  It  is  unreasonable  to  suppose  that  any  demand 
for  rendition  framed  upon  a  general  representation  to  the  govern- 
ment of  the  asylum  (if  we  may  use  such  an  expression)  that  the 
party  for  whom  the  demand  was  made  was  guilty  of  some  violation 
of  the  laws  of  the  country  which  demanded  him,  without  specifying 
any  particular  offense  with  which  he  was  charged,  and  even  without 
specifying  an  offense  mentioned  in  the  treaty,  would  receive  any 
serious  attention ;  and  yet  such  is  the  effect  of  the  construction  that 
the  party  is  properly  liable  to  trial  for  any  other  offense  than  that 
for  which  he  was  demanded,  and  which  is  described  in  the  treaty. 
There  would,  under  that  view  of  the  subject,  seem  to  be  no  need  of 
a  description  of  a  specific  offense  in  inaking  the  demand.  But,  so 
far  from  this  being  admissible  the  treaty  not  only  provides  that  the 
party  shall  be  charged  with  one  of  the  crimes  mentioned,  to  Avit, 
murder,  assault  with  intent  to  commit  murder,  piracy,  arson,  rob- 
bery, forgery  or  the  utterance  of  forged  paper,  but  that  evidence 
shall  be  produced  to  the  judge  or  magistrate  of  the  country  of  which 
such  demand  is  made,  of  the  commission  of  such  an  offense,  and 


280  TERRITORIAL   JURISDICTION.  [PART  L 

that  this  evidence  shall  be  snch  as  according  to  the  law  of  that 
country  would  justify  the  apprehension  and  commitment  for  trial  of 
the  person  so  charged.  If  the  proceedings  under  which  the  party  is 
arrested  in  a  country  where  he  is  peaceably  and  quietly  living,  and 
to  the  protection  of  whose  laws  he  is  entitled,  are  to  have  no  influ- 
ence in  limiting  the  prosecution  in  the  country  where  the  offense  is 
charged  to  have  been  committed,  there  is  very  little  use  for  this  par- 
ticularity in  charging  a  specific  offense,  requiring  that  offense  to  be 
one  mentioned  in  the  treaty,  as  well  as  sufficient  evidence  of  the 
party's  guilt  to  put  him  upon  trial  for  it.  Nor  can  it  be  said  that, 
in  the  exercise  of  such  a  delicate  power  under  a  treaty  so  well 
guarded  in  every  particular,  its  provisions  are  obligatory  alone  on 
the  State  which  makes  the  surrender  of  the  fugitive,  and  that  that 
fugitive  passes  into  the  hands  of  the  country  which  charges  him  with 
the  offense,  free  from  all  the  positive  requirements  and  just  impli- 
cations of  the  treaty  under  which  the  transfer  of  his  person  takes 
place.  A  moment  before  he  is  under  the  protection  of  a  govern- 
ment which  has  afforded  him  an  asylum  from  which  he  can  only  be 
taken  under  a  very  limited  form  of  procedure,  and  a  moment  after 
he  is  found  in  the  possession  of  another  sovereignty  by  virtue  of 
that  proceeding,  but  divested  of  all  the  rights  which  he  had  the 
moment  before,  and  of  all  the  rights  which  the  law  governing  that 
proceeding  was  intended  to  secui'C. 

"  If  upon  the  face  of  this  treaty  it  could  be  seen  that  its  sole  object 
was  to  secure  the  transfer  of  an  individual  from  the  jurisdiction  of 
one  sovereignty  to  that  of  another,  the  argument  might  be  sound ; 
but  as  this  right  of  transfer,  the  right  to  demand  it,  the  obligation 
to  grant  it,  the  proceedings  under  which  it  takes  place,  all  show 
that  it  is  for  a  limited  and  defined  purpose  that  the  transfer  is  made, 
it  is  impossible  to  conceive  of  the  exercise  of  jurisdiction  in  such  a 
case  for  any  other  purpose  than  that  mentioned  in  the  treaty,  and 
ascertained  by  the  proceedings  under  which  the  party  is  extradited, 
without  an  implication  of  fraud  upon  the  rights  of  the  party  extra- 
dited, and  of  bad  faith  to  the  country  which  permitted  his  extra- 
dition. No  such  view  of  solenni  pnblic  treaties  between  the  great 
nations  of  the  earth  can  be  sustained  by  a  tribunal  called  upon  to 
give  judicial  construction  to  them. 

"  The  opposite  view  has  been  attempted  to  be  maintained  in  this 
country  upon  the  ground  that  there  is  no  express  limitation  in  the 
treaty  of  the  right  of  the  country  in  which  the  offense  was  com- 
mitted to  try  the  person  for  the  crime  alone  for  which  he  was  ex- 
tradited, and  that  once  being  within  tlie  jurisdiction  of  that  country, 
no  matter  by  what  contrivance  or  fraud  or  by  what  pretense  of 


CHAP.  II.]  UNITED    STATES    V,   RAUSCHER,  281 

establishing  a  charge  provided  for  by  the  extradition  treaty  he  may 
have  been  brouglit  within  the  jurisdiction,  he  is,  when  here,  liable 
to  be  tried  for  any  offense  against  the  laws  as  though  arrested  here 
originally.  This  proposition  of  the  absence  of  express  restriction  in 
the  treaty  of  the  right  to  try  him  for  other  offenses  than  that  for 
which  he  was  extradited,  is  met  by  the  manifest  scope  and  object  of 
the  treaty  itself.  The  caption  of  the  treaty,  already  quoted,  declar- 
ing that  its  purpose  is  to  settle  the  boundary  line  between  the  two 
governments  ;  to  provide  for  the  final  suppression  of  the  African 
slave  trade  ;  adds,  '  and  for  the  giving  np  of  criminals,  fugitive  from 
justice,  in  certain  cases.''  The  treaty,  then,  requires,  as  we  have 
already  said,  that  there  shall  be  given  np,  upon  requisitions  respect- 
ively made  by  the  two  governments,  all  persons  charged  Avith  any 
of  the  seven  crimes  enumerated,  and  the  provisions  giving  a  party 
an  examination  before  a  proper  tribunal,  in  which,  before  he  shall 
be  delivered  up  on  this  demand,  it  must  be  shown  that  the  offense 
for  which  he  is  demanded  is  one  of  those  enumerated,  and  that  the 
proof  is  suflficient  to  satisfy  the  court  or  magistrate  before  whom 
this  examination  takes  place  that  he  is  guilty  and  such  as  the  law 
of  State  of  the  asylum  requires  to  establish  such  guilt,  leave  no  rea- 
son to  doubt  that  the  fair  purpose  of  the  treaty  is,  that  the  person 
shall  be  delivered  up  to  be  tried  for  that  offense  and  for  no  other. 

"  If  there  should  remain  any  doubt  upon  this  construction  of  the 
treaty  itself,  the  language  of  two  acts  of  Congress,  heretofore  cited, 
incorporated  in  the  Eevised  Statutes,  must  set  this  question  at  rest. 
Rev.  Stat.  §§  3272,  3275.  *  *  * 

"  The  obvious  meaning  of  these  two  statutes,  which  have  reference 
to  all  treaties  of  extradition  made  by  the  United  States,  is  that  th& 
party  shall  not  be  delivered  up  by  this  government  to  be  tried  for 
any  other  offense  than  that  charged  in  the  extradition  proceedings  ; 
and  that,  when  brought  into  this  country  upon  similar  proceedings, 
he  shall  not  be  arrested  or  tried  for  any  other  offense  than  that  with 
which  he  was  charged  in  those  proceedings,  until  he  shall  have  had 
a  reasonable  time  to  return  unmolested  to  the  country  from  which  he 
was  brought.  This  is  undoubtedly  a  congressional  construction  of  the 
purpose  and  meaning  of  extradition  treaties  such  as  the  one  we  have 
under  consideration,  and  whether  it  is  or  not,  it  is  conclusive  upon 
the  judiciary  of  the  right  conferred  upon  persons  bought  from  a  for- 
eign country  into  this  under  such  proceedings. 

"  That  right,  as  we  understand  it,  is  that  he  shall  be  tried  only  for 
the  offense  with  which  he  is  charged  in  the  extradition  proceedings, 
and  for  Avhicli  he  Avas  delivered  up,  and  that  if  not  tried  for  that,  or 
after  trial  and  acquittal,  he  sliall  have  a  reasonable  time  to  leave  the 


282  TERRITORIAL   JURISDICTION.  [PART  I. 

country  before  he  is  arrested  upon  the  charge  of  any  other  crime 
committed  previous  to  his  extradition.  *  *  * 

"  Upon  a  review  of  tliese  decisions  of  the  Federal  and  State  courts, 
to  wliich  may  be  added  tlie  opinions  of  the  distinguished  writers 
which  we  have  cited  in  tlie  earlier  part  of  this  opinion,  we  feel  author- 
ized to  state  that  the  weight  of  authority  and  of  sound  principle  are 
in  favor  of  the  proposition,  that  a  person  who  has  been  brought 
within  the  jurisdiction  of  the  court  by  virtue  of  proceedings  under 
an  extradition  treaty,  can  only  be  tried  for  one  of  the  offenses  de- 
scribed in  that  treaty,  and  for  the  offense  with  which  he  is  charged  in 
the  proceedings  for  his  extradition,  until  a  reasonable  time  and  oppor- 
tunity have  been  given  him,  after  his  release  or  trial  uj^on  such 
charge,  to  return  to  the  country  from  whose  asylum  he  had  been  for- 
cibly taken  under  those  proceedings."  ^ 

1  Waite,  C.  J.,  dissented  from  the  opinion  of  the  court. 

Tlie  decision  in  Rauscher's  Case  put  an  end  to  a  controversy  between  the  United 
States  and  England,  of  some  years'  standing,  as  to  the  interpretation  of  the  extradi- 
tion clause  of  the  treaty  of  1842.  England  had  contended  tliat  a  person  surrendered 
under  the  treaty  could  be  tried  for  no  offence  except  the  specific  one  for  which 
extradition  was  accorded.  The  government  of  the  United  States  had  insisted,  on  the 
other  hand,  that  a  person  once  extradited  could  be  indicted  and  tried  for  offences  other 
than  that  charged  in  the  demand  for  extradition.  (See  the  cases  of  Lawrence  and 
Winslow,  Moore's  Extradition,  L,  196-219;  Wharton's  Digest,  IL,  §  270;  U.  S. 
Foreign  Relations,  1876.)  For  English  practice,  see  In  re  Windsor,  1865,  B.  &  S.  52  ; 
Rex  V.  Dix,  1902,  18  T.  L.  231  (K.  B.),  and  a  note  to  tliis  case  in  15  Harv.  Law  Rev. 
674. 

The  Supreme  Court,  in  Rauscher's  Case,  upholds  the  English  view  of  the  question. 

Previous  to  this  authoritative  decision,  judicial  opinion  had  been  divided.  In  accord 
with  this  decision  :  Com.  v.  Hawes,  1877,  13  Bush.  697 ;  Blanford  v.  The  State,  1881, 
10  Texas  App.  627 ;  Watt's  Case,  1882,  14  Fed.  Rep.  139  ;  State  v.  VanderpooJ,  1881, 
39  Ohio  State,  237.  Contra  :  Caldioell's  Case,  1871,  8  Blatch.  131  ;  Lagarve's  Case, 
1873,  14  Abb.  Pr.  (N.  S.),  383;  Tn  re  Miller,  1885,  23  Fed.  Rep.  32;  Ex  parte  Hibhs, 
1886,  26  Fed.  Rep.  422. 

The  decisions  of  the  French  Court  of  Cassation  are  in  accord  with  that  of  the 
United  States  Supreme  Court:  Dalloz,  1867,  p.  281,  No.  6,  and  ib ,  1874,  p.  502  and 
notes. 

In  Rauscher's  Case,  the  Supreme  Court  expressed  the  opinion  that,  in  the  absence 
of  treaty,  tliere  was  under  international  law  no  riglit  of  extradition. 

And  further  that,  in  the  United  States,  extradition  is  a  matter  exclusively  in  the 
control  of  the  Federal  Government.  See  Ex  parte  Holmes,  1840,  12  Vt.  631  ;  Holmes 
V.  Jennison,  1840,  14  Peters,  540;  People  v.  Curtis,  1872,  50  N.  Y.  321. 

In  1864  President  Lincoln  surrendered  to  the  Spanish  authorities  one  Arguelles,  an 
alleged  fugitive  from  justice,  without  any  treat)'  stipulation.  The  case  was  unfavor- 
ably criticised  at  the  time  and  since,  so  that  it  has  not  been  followed  as  a  precedent. — 
Ed. 


CHAP.  II.]  STATE    V.    PATTERSON.  283 

STATE  V.  PATTERSON 

Supreme  Court  of  Missouri,  1893. 
(116  Missouri,  505.) 

Sherwood,  J.^  The  third,  question  presented  by  the  record  is  that 
in  relation  to  the  jurisdiction  of  the  court  to  try  defendant  on  the  third 
count  of  the  indictment ;  and  this  contention  is  made  because  it  is  said 
the  affidavit  of  Huston,  on  which  the  requisition  was  based,  was  not 
sufficiently  comprehensive  to  embrace  the  charge  contained  in  that 
count,  and  this  contention  was  set  forth  in  the  trial  court  by  a  plea  to 
the  jurisdiction.  The  decided  cases  show  some  divergence  of  opinion 
on  the  question  whether  a  fugitive  from  justice,  when  brought  back 
to  the  State  where  the  alleged  crime  occurred,  can  be  tried  for  crimes 
other  than  the  one  for  which  he  was  extradited,  some  authorities  hold- 
ing that  the  fugutive  cannot  be  tried  except  for  the  offence  named  in 
the  warrant  of  extradition ;  others  that  when  a  person  is  properly 
charged  with  crime  in  the  courts  of  the  State  to  which  he  is  brought, 
they  will  not  inquire  into  the  means  whereby  his  extradition  was 
affected.  8  American  and  English  Encyclopaedia  of  Law,  pp.  648  et 
seq.  As  sustaining  the  latter  view,  a  view  entertained  by  the  great 
preponderance  and  a  majority  of  the  authorities,  are :  Hdm  v.  State,  4 
Tex.  App.  645;  State  v.  Ross,  21  Iowa,  467;  State  ex  rel.  v.  Steicart,  60 
Wis.  587 ;  Waterman  v.  State,  116  Ind.  51 ;  People  v.  Roice,  4  Park. 
Cr.  253;  Ker  v.  People,  110  111.  627;  LaGrave's  Case,  59  N.  Y.  110; 
People  ex  rel.  v.  Cross,  135  N.  Y.  536 ;  In  re  Miles,  52  Yt.  609 ;  State  v. 
Smith,  1  Bail.  (So.  Ca.),  283;  Doics'  Case,  18  Pa.  St.  37;  HarUmd  v. 
Territory,  3  Strune  (Wash.),  131 ;  Commonwealth  v.  Wright,  158  ]\Iass. 
149;  Kentucky  v.  Dennison,  24  How.  (U.  S.),  QQ;  In  re  Noyes,  17  Alb. 
L.  J.  407;  Ker  v.  Illinois,  119  U.  S.  436;  Mahon  v.  Justice,  127  U.  S. 
700;  Cook  V.  Hart,  146  U.  S.  183 ;  1  Bishop  Criminal  Procedure  [3d  Ed.], 
sec.  224  h ;  2  Moore  on  Extradition,  sec.  643  et  seq. 

In  the  recent  ease  of  lascelles  v.  State,  16  S.  E.  Rep.  945  (1892),  the 
Supreme  Court  of  the  State  of  Georgia,  per  Lumpkin,  J.,  ruled  that 
the  defendant,  though  indicted  for  the  offence  of  being  a  common  cheat 
and  swindler,  and  for  larceny  after  trust,  and  extradited  from  the 
State  of  New  York  on  those  charges,  could  be  indicted  and  tried  for  a 
forgery  committed  in  that  State  prior  to  his  extradition.     This  case 

1  Only  ths  opinion  on  tliis  third  point  is  given.  —  Ed. 


284  TERRITORIAL   JURISDICTION.  [PART  I. 

was  brought  on  error  to  the  Supreme  Court  of  the  United  States, 
Lascelles  v.  Georgia,  148  U.  S.  537,  where,  after  a  review  of  the  au- 
thorities, the  judgment  was  affirmed.  In  that  case,  decided  April  13, 
1893.  the  Supreme  Court  of  the  United  States,  as  did  the  Supreme 
Court  of  Georgia,  clearly  pointed  out  the  distinction  which  should  be 
taken  between  those  cases  ot  extradition  arising  between  the  several 
States  of  the  Union  under  the  Constitution  and  laws  of  Congress  and 
those  cases  where  a  prisoner  has  been  extradited  from  a  foreign  country 
under  treaty  stipulations,  in  which  latter  cases  it  has  been  ruled  that 
a  person  thus  extradited  could  only  be  tried  for  the  specific  offence 
wliich  caused  his  extradition.      United  States  v.  Rauscher,  119  U.  S.  407. 

In  Ker  v.  Feople,  110  111.  627,  the  defendant  was  kidnapped  in  Peru, 
and  brought  over  to  the  State  of  California,  where  he  was  extradited 
on  a  requisition  from  the  State  of  Illinois,  on  a  charge  of  larceny,  and 
returned  to  the  State  of  Illinois  whence  he  had  fled,  and  there  tried  on 
a  charge  of  embezzlement,  and  it  was  held  that  defendant  had  no  valid 
ground  of  objection  to  the  jurisdiction  of  the  court  which  tried  him. 
Carried  on  error  to  the  Supreme  Court  of  the  United  States,  the  judg- 
ment was  affirmed.     119  U.  S.  436. 

In  Mahon  v.  Justice,  127  U.  S.  700,  the  defendant  was  kidnapped  in 
West  Virginia  and  forcibly  carried  back  to  Kentucky  and  held  for  trial 
of  a  crime  alleged  to  have  been  committed  in  that  State.  The  Governor 
of  West  Virginia  demanded  that  defendant  be  restored,  and  meeting 
with  refusal,  resorted  to  habeas  covj^ns  in  order  to  affect  his  restoration. 
The  Circuit  Court  of  the  United  States  refused  to  discharge  the  defen- 
dant, and  on  appeal  to  the  Supreme  Court  this  judgment  was  affirmed. 
In  that  case  it  was  contended  that  a  right  of  asylum  in  the  State  to 
which  he  had  fled,  was  possessed  by  the  fugitive,  which  the  Federal 
courts  should  enforce;  but  this  right  was  declared  in  that  case  to  have 
no  existence  under  the  laics  of  the  United  States,  nor  did  the}-  make 
any  provision  for  the  return  of  parties  who  without  lawful  authority 
had  been  abducted  from  another  State ;  and  that  such  forcible  abduc- 
tion from  another  State  did  not  affect  or  impair  the  jurisdiction  of  tlie 
State  to  which  they  were  brought,  to  try  them  for  crimes  committed 
therein. 

That  the  jurisdiction  of  the  court  in  which  the  indictment  is  found 
is  not  impaired  by  the  method  used  to  bring  the  accused  before  it,  was 
the  rule  at  common  law  and  was  declared  in  the  early  case  of  HJx  parte 
Scott,  9  B.  &  C.  446.  The  result  of  the  authorities  heretofore  cited  is 
in  the  same  direction. 

There  are  a  few  others  o])posed  to  this  view;  among  them  are  State 
V.  Hall,  40  Kan.  338  ;  Ex  parte  McKnight  (Ohio),  28  N.  E.  Eep.  1034; 
Cannon'' s  Case,  47  Mich.  481;  but  we  are  quite  satisfied,  both  upon  reason 


CHAP.  II.]  IN    RE   CASTIONI.  2S5 

and  authority,  that  the  rule  annouuced  in  the  former  cases  is  the  correct 
one  and  should  prevail. 

Tlierefore  judgment  affirmed.     All  concur.^ 


In  Re  CASTIONI. 
Queen's  Bench,  1890. 

(Z.  R.  Queen's  Bench  Dtv.  149.) 

On  an  application  for  a  writ  of  habeas  co?-jms,  the  motion  was  made 
on  behalf  of  Angelo  Castioni,  for  an  order  nisi  calling  upon  the  solic- 
itor to  the  Treasury,  Franklin  Lushington,  Esq. ,  a  metropolitan 
police  magistrate,  and  the  consul-general  of  Switzerland,  as  repre- 
sentative of  the  Swiss  Republic,  to  show  cause  why  a  writ  of  habeas 
corpus  should  not  issue  to  bring  up  the  body  of  Castioni  in  order 
that  he  might  be  discharged  from  custody. 

The  prisoner  Castioni  had  been  arrested  m  England,  on  the  requi- 
sition of  the  Swiss  Government,  and.  brought  before  the  magistrate 
at  the  police  court  at  Bow  Street,  and  by  him  committed,  to  prison 
for  the  purpose  of  extradition,  on  a  charge  of  willful  murder,  alleged 
to  have  been  committed  in  Switzerland. 

The  facts,  which  were  contained  in  depositions  sent  from  Switzer- 
land, in  the  depositions  taken  before  the  magistrate  at  Bow  Street, 
and  in  aflBdavits  used  on  the  hearing  of  the  motion  were  shortly  as 
follows  :  — 

The  prisoner  was  charged  with  the  murder  of  Luigi  Rossi,  by  shoot- 
ing him  with  a  revolver  on  September  11,  1890,  in  the  town  of  Bel- 
linzona,  m  the  canton  of  Ticino,  in  Switzerland.  The  deceased,  Rossi, 
was  a  member  of  the  State  Council  of  the  canton  of  Ticino,  and  was 
about  twenty-six  years  of  age.  The  prisoner,  Castioni,  was  a  citizen 
of  the  same  canton  ;  he  had  resided  for  seventeen  years  in  England, 
and  arrived  at  Bellinzona  on  September  10,  1890.  For  some  time 
previous  to  this  date  much  dissatisfaction  had  been  felt  and  expressed 
by  a  large  number  of  the  inhabitants  of  Ticino  at  the  mode  in  which 

^  The  leading  cases  on  interstate  rendition  are  :  Kentucky  v.  Dennison,  1860,  24  How. 
66;  Ex  parte  Reggel,  1885,  114  U.  S.  642;  Mahon  v.  Justice,  1887,  127  U.  S.  700;  Las- 
celles  V.  Georgia,  1892,  148  U.  S.  537.  State  v.  Patterson,  supra,  states  the  law  more 
briefly  and  cites  authorities.  As  to  the  legal  meaning  of  the  piirase  "fugitive  from 
justice,"  see  Kingsbury's  Case,  1870,  106  Mass.  '2'2o,  and  Jones  v.  Leonard,  1S78,  50  la. 
106,  and  see  valuable  notes  in  8  Harv.  Law  Kev.  494.  On  the  subject  in  general,  in 
addition  to  Moore's  masterly  treatise,  see  a  brief  note  in  8  Harv.  Law.  Kev.  41G.  —  Ed. 


286  TEKRITORIAL    JURISDICTION.  [PART  I. 

the  political  party  then  in  power  were  conducting  the  government 
of  the  canton.  A  request  was  presented  to  the  Government  for  a 
revision  of  the  constitution  of  tlie  canton,  under  art.  15  of  the  consti- 
tution, which  provides  that  "  Tlie  constitution  of  the  canton  may  be 
revised  wholly  or  partially.  *  *  *  (b)  at  the  request  of  7,000  citizens 
presented  with  the  legal  formalities.  In  this  case  the  council  shall 
within  one  month  submit  to  the  people  the  question  whether  or  not 
they  wish  to  revise  the  constitution,"  and  a  law  of  May  9,  1877, 
prescribes  the  course  to  be  adopted  for  the  execution  of  letter  (b)  of 
art.  15. 

The  Government  having  declined  to  take  a  popular  vote  on  the 
question  of  the  revision  of  the  constitution,  on  September  11,  1890, 
a  number  of  the  citizens  of  Bcllinzona,  among  whom  was  Castioni, 
seized  the  arsenal  of  the  town,  from  which  they  took  rifles  and  am- 
munition, disarmed  tlie  gendarmes,  arrested  and  bound  or  handcuffed 
several  persons  conuected  with  the  Government,  and  forced  them 
to  march  in  front  of  the  armed  crowd  to  the  municipal  palace.  Ad- 
mission to  the  palace  was  demanded  in  the  name  of  the  people,  and 
was  refused  by  Rossi  and  another  member  of  the  Government, 
who  were  in  the  palace.  The  crowd  then  broke  open  the  outer  gate 
of  the  palace,  and  rushed  in,  pushing  before  them  the  Government 
officials  whom  they  had  arrested  and  bound;  Castioni,  who  was 
armed  with  a  revolver  was  among  the  first  to  enter.  A  second  door, 
which  was  locked,  was  broken  open,  and  at  this  time,  or  immediately 
after,  Rossi,  who  was  in  the  passage,  was  shot  through  the  body 
with  a  revolver,  and  died  very  soon  afterwards.  Some  other  shots 
were  fired,  but  no  one  else  was  injured.  Two  witnesses,  who  were 
present  when  the  shot  was  fired,  and  were  called  before  the  magis- 
trate at  Bow  Street,  identified  Castioni  as  the  person  who  fired  the 
shot.  One  of  the  witnesses  called  for  the  prisoner  was  an  advocate 
named  Bruni,  who  had  taken  a  leading  part  in  the  attack  on  the 
municipal  palace.  In  cross-examination  he  said :  "  The  death  of 
Rossi  was  a  misfortune,  and  not  necessary  for  the  rising."  There 
was  no  evidence  that  Castioni  had  any  previous  knowledge  of 
Rossi.  The  crowd  then  occupied  the  palace,  disarmed  the  gendarmes 
who  were  there,  and  imprisoned  several  members  of  the  Government. 
A  provisional  Government  was  appointed,  of  which  Bruni  was  a 
member,  and  assumed  tlie  Government  of  the  canton,  which  it  re- 
tained until  dispossessed  by  the  armed  intervention  of  the  Federal 
Government  of  the  Republic. 

Tlie  magistrate  was  of  opinion  that  the  identification  of  Castioni 
was  sufficient,  and  held  upon  the  evidence  that  the  bar  to  extradition 
specified  in  §  3  of  the  Extradition  Act,  1870:  "A  fugitive  criminal 


CHAP.  II.]  IN    RE   CASTIONI.  287 

shall  not  be  surrendered  if  the  offence  in  respect,  of  which  his  sur- 
render is  demanded  is  one  of  a  political  character,  or  if  he  prove  to 
the  satisfaction  of  the  police  magistrate,  or  the  court  before  whom 
he  is  brought  on  habeas- corpus^  or  to  the  Secretary  of  State,  that  the 
requisition  for  his  surrender  has  in  fact  been  made  with  a  view  to 
try  or  punish  him  for  an  offence  of  a  political  character,"  did  not 
exist,  and  committed  Castioni  to  prison.  By  the  extradition  treaty 
with  Switzerland,  dated  Nov.  2Q,  1880,  article  11 :  "A  fugitive  crim- 
inal shall  not  be  surrendered  if  the  offence  in  respect  of  which  his 
surrender  is  demanded  is  one  of  a  political  character,  or  if  he  prove 
that  the  requisition  for  his  surrender  has  in  fact  been  made  with  a 
view  to  try  and  punish  him  for  an  offence  of  a  political  character." 
Sir  Charles  Russell,  for  the  prisoner ;  the  Attorney-General,  for  the 
Crown. 

Denmak,  J. : — "  Looking  at  the  extreme  importance  of  this  case, 
I  should  have  been  disposed,  if  I  had  felt  any  serious  doubt  as  to  the 
course  we  ought  to  pursue,  to  have  taken  time,  not  so  much  to  con- 
sider what  our  judgment  should  be,  as  to  take  care  to  put  it  in  the 
best  possible  shape,  or  even  to  reduce  it  to  writing.  But  there  are 
many  considerations  which  apply  to  cases  of  this  sort.  One  is,  that 
here  is  a  man  in  custody  who  has  been  in  custody  for  a  considerable 
time,  and  no  greater  delay  than  is  reasonably  necessary  ought  to  be 
interposed  if  our  decision  should  be  one  to  the  effect  that  he  ought 
not  to  be  in  custody  any  longer.  I  am  unable  to  entertain  a  doubt 
that  this  is  a  case  in  which  we  ought  to  order  that  the  prisoner  be 
discharged. 

"  There  has  been  no  legal  decision  as  yet  upon  the  meaning  of 
the  words  contained  in  the  act  of  1870,  upon  the  true  meaning  of 
which  this  case  mainly  depends.  We  have  had  many  definitions  sug- 
gested, and  great  light  has  been  thrown  upon  the  possible  and  prob- 
able meaning  of  the  words  by  the  arguments  that  have  been  ad- 
dressed to  us,  applying  not  only  the  language  of  judges,  but  language 
used  in  text-books,  language  used  by  great  political  authorities,  and  in 
one  case  by  a  most  learned  philosopher.  I  think  it  has  been  useful 
in  such  a  case  as  this  that  we  should  hear  a  discussion  as  to  the  pos- 
sible meaning  of  the  words,  as  it  has  occurred  that  they  ought  to  be 
construed  to  people  such  as  those  whose  opinions  have  been  cited, 
and  especially  I  may  apply  that  observation  to  the  case  of  my 
very  learned  brother  whose  assistance  we  have  on  this  occasion 
in  deciding  the  present  case.  I  do  not  think  it  is  necessary  or  de- 
sirable that  we  should  attempt  to  put  into  language,  in  the  shape  of 
an  exhaustive  definition,  exactly  the  whole  state  of  things,  or  every 
state  of  things  which  bring  a  particular  case  within  the  description 


288  TERRITORIAL   JURISDICTION.  [PART  I. 

of  an  offence  of  a  political  character.  I  wish,  however,  to  express 
an  opinion  as  to  one  matter  upon  which  I  entertain  a  very  strong 
opinion.  That  is,  tliat  if  the  description  given  by  Mr.  John  Stuart 
Mill,  '  Any  offence  committed  m  the  course  of  or  furthering  of  civil 
war,  insurrection,  or  political  commotion,'  were  to  be  construed  in 
the  sense  that  it  really  means  any  act  which  takes  place  in  the 
course  of  a  political  rising  without  reference  to  tlie  object  and  inten- 
tion of  it,  and  other  circumstances  connected  with  it,  I  should  say 
that  it  was  a  wrong  definition  and  one  which  could  not  be  legally  ap- 
plied to  the  words  in  the  Act  of  Parliament.  Sir  Charles  Russell 
suggested  that  '  in  the  course  of '  was  to  be  read  with  the  words  fol- 
lowing, '  or  in  furtherance  of,'  and  that  '  in  furtherance  of '  is  equiv- 
alent to  '  in  the  course  of.'  I  cannot  quite  think  that  this  was  the 
intention  of  the  speaker,  or  is  the  natural  meaning  of  tlie  expression ; 
but  I  entirely  concur  with  the  observation  of  the  Solicitor-General 
that  in  the  other  sense  of  the  words,  if  they  are  not  to  be  construed 
as  merely  equivalent  expressions,  it  would  be  a  wrong  definition. 
I  think  that  in  order  to  bring  the  case  within  the  words  of  the  Act 
and  to  exclude  extradition  for  such  an  act  as  murder,  which  is  one 
of  the  extradition  offences,  it  must  at  least  be  shown  that  the  act 
is  done  in  furtherance  of,  done  with  the  intention  of  assistance,  as  a 
sort  of  overt  act  in  tlie  course  of  acting  in  a  political  matter,  a  polit- 
ical rising,  or  a  dispute  between  two  parties  in  the  state  as  to  which 
is  to  have  the  government  in  its  hands,  before  it  can  be  brought 
within  the  meaning  of  the  words  used  in  the  act. 

"  Sir  Charles  Russell  has  argued  that  in  every  case  it  is  for  the 
party  seeking  extradition  to  bear  the  onus  of  affirmatively  bringing 
it  within  the  meaning  of  those  words.  On  the  other  hand,  it  has 
been  contended  that  if  there  be  an  extraditable  offence,  the  onus  is 
upon  the  person  seeking  the  benefit  of  those  words  to  show  a  case 
ill  which  extradition  can  be  avoided.  I  do  not  myself  think  that  it 
is  possible  to  decide  a  case  such  as  this,  or  the  true  meaning  of  those 
words,  by  applying  any  such  test  as  on  whom  is  the  onus.  I  do  not 
think  it  is  intended  that  a  scrap  of  apruna  facie  case  on  the  one 
side  should  have  the  effect  of  throwing  upon  the  other  side  the  onus 
of  proving  or  disproving  his  position.  I  look  at  the  words  of  the 
act  themselves  and  I  think  that  they  are  against  any  such  narrow 
technical  mode  of  dealing  with  the  case.  The  words  of  s.  3,  subd. 
1,  are  '  a  fugitive  criminal  shall  not  be  surrendered  if  the  offence  in 
respect  of  which  his  surrender  is  demanded  is  one  of  a  political 
character.'  The  section  itself  begins  :  '  Tlie  following  restrictions 
shall  be  observed  with  respect  to  tlie  surrender  of  fugitive  criminals.' 
There  is  nothing  said  as  to  upon  whom  is  the  onus  prohandi^  or  that 


CHAP.  II.]  IN   EE   CASTIONI.  289 

it  shall  be  made  to  appear  by  one  side  or  the  other  in  such  a  case. 
It  is  a  restriction  upon  tlie  surrender  of  a  fugitive  criminal,  and 
however  it  appears,  if  it  does  appear,  that  the  act  was,  in  the  judg- 
ment of  the  court,  an  offence  which  would  otherwise  be  an  offence 
according  to  the  laws  of  this  country,  but  an  offence  of  a  political 
character,  then  wholly  irrespective  of  any  doctrine  of  onus  on  the  one 
side  or  the  other,  that  is  within  the  jurisdiction,  and  he  cannot  be 
surrendered.  It  was  at  first  contended,  in  opposition  to  the  application 
for  a  habeas  corpus.,  that  if  the  magistrate  upon  this  question  once 
made  up  his  mind,  the  court  had  no  jurisdiction  to  deal  with  it. 
It  appears  to  me  that  this  proposition  cannot  be  maintained  on  the 
very  face  of  the  act  itself,  which  requires  by  s.  11  that  the  magistrate 
shall  inform  the  prisoner  that  he  may  apply  for  a  habeas  corpus,  and 
if  he  is  entitled  to  apply  for  a  habeas  corjnis,  I  think  it  follows  that 
this  court  must  have  power  to  go  into  the  whole  matter,  and  in 
some  cases,  certainly  if  there  be  fresh  evidence,  or  perhaps  upon  the 
same  evidence,  might  take  a  different  view  of  the  matter  from  that 
taken  by  the  magistrate. 

"  It  seems  to  me  that  it  is  a  question  of  mixed  law  and  fact — 
mainly  indeed  of  fact — as  to  Avhether  the  facts  are  such  as  to  brmg 
the  case  within  the  i-estriction  of  s.  3,  and  to  show  that  it  was  an 
offence  of  a  political  character.  I  do  not  think  it  is  disputed,  or  that 
now  it  can  be  looked  upon  as  in  controversy,  that  there  was  at  this 
time  existmg  in  Ticino  a  state  of  things  which  would  certainly  show 
that  there  was  more  than  a  mere  small  rising  of  a  few  people  against 
the  law  of  the  State.  I  think  it  is  clearly  made  out  by  the  facts  of 
this  case,  that  there  was  something  of  a  very  serious  character  going 
on — amounting,  I  should  go  so  far  as  to  say,  in  that  small  com- 
munity, to  a  state  of  war.  There  was  an  armed  body  of  men  who 
had  seized  arms  from  the  arsenal  of  the  State ;  they  were  rushing 
into  the  municipal  council  chamber  in  which  the  government  of  the 
State  used  to  assemble ;  they  demanded  admission  ;  admission  was 
refused ;  some  firing  took  place ;  the  outer  gate  was  broken  down ; 
and  I  thmk  it  also  appears  perfectly  plain  from  the  evidence  in  the 
case  that  Castioni  was  a  person  who  had  been  taking  part  in  that 
movement  at  a  much  earlier  stage.  He  was  an  active  party  in  the 
movement ;  he  had  taken  part  in  the  binding  of  one  member  of  the 
government.  Some  time  before  he  arrived  with  his  pistol  in  his 
hand  at  the  seat  of  government,  he  had  gone  with  multitudes  of  men, 
armed  with  arms  from  the  arsenal,  m  order  to  attack  the  seat 
of  government,  and  I  think  it  must  be  taken  that  it  is  quite  clear 
that  from  the  very  first,  he  was  an  active  party,  one  of  the  rebellious 
party  who  was  acting  and  in  the  attack  against  the  government. 

ly 


290  TERRITORIAL   JURISDICTION.  [PART  I. 

Now,  that  being  so,  it  resolves  itself  into  a  small  point,  depending 
on  the  evidence  which  was  taken  before  the  magistrate,  and  any- 
thing  that  we  can  collect  from  the  evidence  that  we  have  before  us 
and  from  the  whole  circumstances  of  the  case. 

"  Before  dealing  with  the  evidence,  I  will  say  one  thing  about  the 
message  which  Avas  objected  to  and  which  was  read  after  a  slight 
discussion,  upon  the  understanding  that  we  were  not  going  to  use 
that  document  as  evidence  of  any  particular  fact,  but  that  it  would 
be  only  used  as  an  important  document  showing  that  the  govern- 
ment of  the  country  had  themselves  looked  upon  this  as  a  serious 
political  rising,  and  a  serious  state  of  violence  by  a  very  large  body 
of  the  people  against  the  government.  I  mean  so  to  use  it,  and  I 
have  never  thought  of  using  it  in  any  other  way.  I  think  that  was 
the  understanding  upon  which  we  allowed  it  to  be  read,  and  I  feel 
that  I  am  not  justified  in  using  it  for  any  other  purpose.  Then  it  is 
reduced  to  the  question  of  whether,  upon  the  depositions  sent  over, 
and  upon  the  depositions  before  the  magistrate  and  upon  the  fresh 
facts,  if  there  be  any,  which  are  brought  before  us  on  the  affidavits, 
we  think  that  this  was  an  act  done,  not  only  in  the  course  of  a  po- 
litical rising,  but  as  part  of  a  political  rising.  Here  I  must  say  at 
once  that  I  assent  entirely  to  the  observation  that  we  cannot  decide 
that  question  merely  by  considering  whether  the  act  done  at  the 
moment  at  which  it  was  done  was  a  wise  act  in  the  sense  of  being 
an  act  which  the  man  who  did  it  would  have  been  wise  in  doing  with 
the  view  of  promoting  the  cause  in  which  he  was  engaged,  I  do 
not  think  it  would  be  at  ull  consistent  with  the  real  meaning  of  the 
words  of  the  statute  if  we  were  to  attempt  so  to  limit  it.  I  mean, 
I  do  not  think  it  would  be  right  to  limit  it  in  the  way  suggested  by 
the  cross-examination  of  Bruni,  namely,  by  considering  whether  it 
was  necessary  at  tlrat  time  that  the  act  should  be  done.  The  ques- 
tion really  is  whether,  upon  the  facts,  it  is  clear  that  the  man  was 
acting  as  one  of  a  number  of  persons  engaged  in  acts  of  violence  of 
a  political  character  with  a  political  object,  and  as  part  of  the 
political  movement  and  rising  in  which  he  was  taking  part.  Now, 
the  only  shadow  of  a  suggestion  of  evidence  to  the  contrary,  I 
think,  is  the  suggestion  which  appears  on  the  face  of  some  of 
the  documents  that  he  said  something  about  his  brother  having 
l)een  assassinated  some  years  before.  It  was  said  in  the  message, 
which  I  have  already  said  I  do  not  rely  upon  as  a  statement  of  fact, 
that  he  did  at  the  time  he  fired  use  the  expression,  '  My  brother's 
death  cries  for  vengeance ! '  That  is  in  the  document,  and  is  a 
statement  of  fact  wliicli  I  do  not  rely  ui)on,  and  I  do  not  think  that 
I  am  justified  in  relyhig  upon  it,  though  if  I  commented  on  that,  I 


CHAP.  II.]  IK   RE   CASTIONI.  291 

should  certainly  say  it  was  quite  as  capable  of  the  construction 
put  upon  it  by  Sir  Charles  Russell,  that  he  was  not  intending  to 
murder  Rossi,  of  whom  he  knew  nothing,  and  of  whose  connection 
with  any  injury  towards  his  brother  there  is  not  the  slightest  pai-- 
ticle  of  evidence,  as  that  it  means  anything  of  the  kind  suggested. 
Then  it  amounts  to  a  very  little,  and  it  comes  to  discussion  as  to  the 
facts  of  the  case,  and  as  to  what  was  taking  place  at  the  exact  mo- 
ment at  which  the  shot  was  fired.  I  have  carefully  followed  the 
discussion  as  to  the  facts  of  the  case,  and  if  it  were  necessary  I 
could  go  through  them  all  one  by  one,  and  point  out,  I  think,  that, 
looking  at  the  way  in  which  that  evidence  was  given,  and  at  the 
evidence  itself,  there  is  nothing  in  my  judgment  to  displace  the 
view  which  I  take  of  the  case,  that  at  the  moment  at  which  Castioni 
fired  the  shot,  the  reasonable  jDresumption  is,  not  that  it  is  a  matter 
of  absolute  certainty  (we  cannot  be  absolutely  certain  about  anything 
as  to  men's  motives)  but  the  reasonable  assumption  is  that  he,  at 
the  moment  knowing  nothing  about  Rossi,  having  no  spite  or  ill- 
will  against  Rossi,  as  far  as  we  know,  fired  that  shot ;  that  he 
fired  it  thmking  it  would  advance,  and  that  it  was  an  act  which  was 
in  furtherance  of,  and  done  intending  it  to  be  in  furtherance  of  the 
very  object  which  the  rising  had  taken  jilace  in  order  to  promote, 
and  to  get  rid  of  the  Government,  who,  he  might,  until  he  had  ab- 
solutely got  into  the  place,  have  supposed  were  resisting  the  en- 
trance of  the  people  to  that  place.  That,  I  think,  is  the  fair  and  rea- 
sonable presumption  to  draw  from  the  facts  of  the  case.  I  do  not 
know  that  it  is  necessary  to  give  any  opinion  as  to  the  exact  mo- 
ment when  the  shot  was  fired  ;  there  is  some  conflict  about  it.  There 
is  evidence  that  there  was  great  confusion ;  there  is  evidence  of 
shots  fired  after  the  shot  which  Castioni  fired ;  and  all  I  can  say  is, 
that  looking  at  it  as  a  question  of  fact,  I  have  come  to  the  conclu- 
sion that  at  the  time  at  which  that  shot  was  fired  he  acted  in  the  fur- 
therance of  the  unlawful  rising  to  which  at  that  time  he  was  a  party, 
and  an  active  party — a  person  who  had  been  doing  active  work  from 
a  very  much  earlier  period,  and  in  which  he  was  still  actively  en- 
gaged. That  being  so,  I  think  the  writ  ought  to  issue,  and  that  we 
should  be  acting  contrary  to  the  spirit  of  this  enactment,  and  to  the 
fair  meaning  of  it,  if  we  were  to  allow  him  to  be  detained  in  cus- 
tody longer." 

Hawkixs,  J.,  said,  among  other  things,  "  Xow  what  is  the  meaning 
of  crime  of  a  political  character  ?  I  have  thought  over  this  matter 
very  much  indeed,  and  I  have  thought  whether  any  definition  can 
be  given  of  the  political  character  of  the  crime — I  mean  to  say,  in 
language  which  is  satisfactory.     I  have  found  none  at  all,  and  I  can 


292  TERRITORIAL    JURISDICTION.  [PART  I, 

imagine  for  myself  none  so  satisfactory,  and  to  my  mind  so  complete, 
as  that  which  I  find  in  a  work  which  I  have  now  before  me,  and  the 
language  of  which  for  the  purpose  of  my  present  judgment  I  en- 
tirely adopt,  and  that  is  the  expression  of  my  brother  Stephen  in  his 
History  of  the  Criminal  Law  of  England  in  vol.  ii.,  pp.  70,  71.  I  will 
not  do  more  than  refer  to  the  interpretations,  other  than  those  with 
which  he  agrees,  which  have  been  given  upon  this  expression, 
'  political  character ' ;  but  I  adopt  his  definition  absolutely.  '  The 
third  meaning  which  may  be  given  to  the  words,  and  which  I  take 
to  be  the  true  meaning,  is  somewhat  more  complicated  than  either 
of  those  I  have  described.  An  act  often  falls  under  several  differ- 
ent definitions.  For  instance,  if  a  civil  war  were  to  take  place,  it 
would  be  high  treason  by  levying  Avar  against  the  Queen.  Every 
case  in  which  a  man  was  shot  in  action  would  be  murder.  When- 
ever a  house  was  burnt  for  military  purposes  arson  would  be  com- 
mitted. To  take  cattle,  etc.,  by  requisition  would  be  robbery.  Ac- 
cording to  the  common  use  of  language,  however,  all  such  acts  would 
be  political  offences,  because  they  would  be  incidents  in  carrying  on 
a  civil  war.  I  think,  therefore,  that  the  expression  in  the  Extradi- 
tion Act  ought  (unless  some  better  interpretation  of  it  can  be 
suggested)  to  be  interpreted  to  mean  that  fugitive  criminals  are 
not  to  be  surrendered  for  extradition  crimes,  if  those  crimes  were 
incidental  to  and  formed  a  part  of  political  disturbances.  I  do  not 
wish  to  enter  into  details  beforehand  on  a  subject  which  might  at 
any  moment  come  under  judicial  consideration.'  The  question  has 
come  under  judicial  consideration,  and  having  had  the  opportunity 
before  this  case  arose  of  carefully  reading  and  considering  the  views 
of  my  learned  brother,  having  heard  all  that  can  be  said  upon  the 
subject,  I  adopt  his  language  as  the  definition '  that  I  think  is  the 
most  perfect  to  be  found  or  capable  of  being  given  as  to  Avhat  is  tlie 
meaning  of  the  phrase  which  is  made  use  of  in  the  Extradition 
Act.  *  *  * 

"  I  cannot  help  thinking  that  everybody  knows  there  are  many 
acts  of  a  political  character  done  without  reason,  done  against  all 
reason  ;  but  at  the  same  time,  one  cannot  look  too  hardly  and  weigh 
in  golden  scales  the  acts  of  men  hot  in  their  political  excitement. 
We  know  that  in  heat  and  in  heated  blood  men  often  do  things  Avhich 
are  against  and  contrary  to  reason;  but  none  the  less  an  act  of  this 
description  may  be  done  for  the  purpose  of  furthering  and  in  further- 
ance of  a  political  rising,  even  though  it  is  an  act  which  may  be  de- 
plored and  lamented,  as  even  cruel  and  against  all  reason,  by  those 
who  can  calmly  reflect  upon  it  after  the  battle  is  over. 

"  For  the  reasons  I  have  expressed,  I  am  of  opinion  that  this  rule 


CHAP,  ir.]  IN   RE   CASTIOXr.  293 

ought  to  be  made  absolute,  and  that  the   prisoner   ought  to   be  dis- 
charged." ^ 

1  In  Re  Ezeta,  1894,  62  Fed.  Reporter,  072,  tlie  court  savs  :  "In  the  Castioni  Case, 
supra,  decided  in  1891,  tiie  question  was  discussed  by  the  most  eminent  counsel  at  the 
Englisli  bar,  and  considered  by  distinguished  judges,  witliout  a  definition  being  found 
that  would  draw  a  fixed  and  certain  line  between  a  municipal  or  common  crime  and 
one  of  a  political  character.  .  .  .  Applying,  by  analogy,  the  action  of  the  Englisli  court 
in  that  case  to  the  four  cases  now  before  me,  under  consideration,  tlie  conclusion  fol- 
lows that  tlie  crimes  charged  here,  associated  as  they  are  witli  the  actual  conflict  of 
armed  forces,  are  of  a  political  cliaracter,"  pp.  098-909. 

For  further  illustrations  of  political  and  non-extraditable  offences  see  Cnzn's  Case, 
1887,  in  1  Moore  on  E.xtradition,  324;  The  St.  Albans  Raid,  18G4,  ib.  322;  Burlfy's 
Case,  1864,  ib.  319. 

Political  offences:  —  "Most  codes  extend  tlieir  definitions  of  treason  to  acts  not 
really  against  one's  country.  They  do  not  distinguish  between  acts  against  the 
government  and  acts  against  the  oppressions  of  tlie  gorernment.  The  latter  are  virtues, 
yet  have  furnished  more  victims  to  the  executioner  than  the  former.  *  *  *  The 
unsuccessful  strugglers  against  tyranny  have  been  the  chief  martyrs  of  treason  laws 
in  all  countries.  *  *  *  Treasons,  then,  taking  the  simulated  whh  the  real,  are  sufficiently 
punished  by  exile."  Jefferson  to  Carmichael  and  Short,  1792.  1  Am.  St.  Pap.  For. 
Rel.,  2.58. 

In  recent  years  there  has  been  much  discussion  as  to  the  nature  of  tlie  crime  coni- 
mitteil  in  the  assassination  of  the  head  of  a  government  and  of  other  public  officials; 
whether  it  is  to  be  put  upon  the  footing  of  ordinary  murder,  or  whether  it  shall  be 
classed  among  those  political  offences  which  are  exempt  from  extradition  proceedings. 
Is  it  possible  to  make  a  distinction,  as  Mr.  Jefferson  suggests,  between  ads  directed 
against  tyranny,  and  those  of  a  mere  common-law  character?  Some  such  distinction 
has  probably  influenced  statesmen  in  their  dealings  with  tlie  question  of  extradition. 
But  as  offences  of  this  class  have  become  more  common  and  have  invaded  the  domin- 
ions of  the  most  liberal  governments,  public  opinion  would  seem  to  be  undergoing  a 
change  in  regard  to  them. 

Soon  after  the  assassination  of  President  Garfield,  the  United  States  Government 
entered  into  two  treaties  of  extradition — that  with  Belgium  of  1882,  and  that  witli 
Luxembourg  of  1883  —  in  which  it  is  stipulated  that  "an  attempt  against  the  life  of 
the  head  of  a  foreign  government  or  against  that  of  any  member  of  his  faniih',  when 
such  attempt  comprises  the  act  either  of  murder  or  assassination  or  of  poisoning, 
shall  not  be  considered  a  political  offence  or  an  act  connected  with  such  an  offence." 
An  extradition  treaty  between  the  United  States  and  Russia,  1893,  contains  a  similar 
clause. 

By  an  agreement  between  the  governments  of  Russia  and  Prussia  in  1S88,  for  the 
basis  of  an  extradition  convention,  attempts  against  the  life  of  the  Emperor  of  Russia 
or  the  members  of  his  family  are  to  be  considered  as  extraditable  offences.  And 
further,  "  the  fact  that  the  crime  or  offence,  in  respect  whereof  extradition  is  demanded, 
has  been  committed  for  a  political  object,  shall  in  no  case  be  a  reason  for  refusing 
extradition."     Lowe's  Life  of  Bismarck,  II ,  19. 

On  this  subject,  see  Moore's  Extradition,  I.,  -303-326. 

It  is  not  usual  for  nations  to  surrender  their  own  subjects  even  although  they  may 
be  guilty  of  the  crime  with  which  they  are  charged.  To  prevent  disputes  of  this  na- 
ture it  is  customary  to  exclude  such  citizens  from  the  operation  of  the  treaty,  by  an 
express  clause  to  that  effect.     See  Trimble's  Case,  1884,  1  Moore  on  Extradition,  166. 


294  TERRITORIAL  JURISDICTION.  [PART  I. 


Section  13.  —  Jurisdiction  of  Offences  Committed  Abroad. 


UXITED   STATES  v.  DAVIS. 
United  States  Circuit  Court,  District  of  Massachusetts,  1873. 

(2  SttnDier,  482.) 

On  an  indictment  for  manslaughter  it  appeared  that  a  gun  was  fired 
by  defendant  Davis,  master  of  an  American  whale  ship  lying  in  the 
harbor  of  one  of  the  Society  Isles,  by  which  a  person  on  board  a  schooner 
(belonging  to  the  natives  and  likewise  lying  within  the  same  harbor) 
was  killed.^ 

Story,  J.  We  are  of  the  opinion  that,  under  the  circumstances 
established   in  evidence,  there  is  no  jurisdiction  in  this   cause.     The 

"The  exemption  of  citizens  from  extradition  has  been  maintained  on  various 
grounds.  Tlie  only  one  which  need  seriously  be  noticed  is  that  by  the  laws  of  most 
countries  provision  is  made  for  the  trial  and  punisiiment  of  their  citizens  for  offences 
committed  abroad,  and  that  a  state  should  not  deUver  up  one  of  its  citizens  to  be 
tried  before  a  foreign  tribunal  when  he  can  be  punished  at  home  under  its  own 
laws.  By  England  and  the  United  States  alone  are  offences,  even  when  committed 
by  tlieir  citizens  or  subjects,  treated  as  entirely  local."  Moore's  Extradition, 
I..  153. 

In  negotiating  extradition  treaties  these  two  states  have  tlierefore  been  willing  to 
stipulate  for  the  rendition  of  their  own  subjects  or  citizens.  Indeed,  the  United  States 
for  a  time  refused  to  enter  into  extradition  treaties  on  any  otiier  basis;  but  since  1852 
this  objection  appears  to  have  been  waived,  and  a  large  number  of  our  treaties  of 
extradition,  as  that  with  Mexico,  exempts  each  party  from  the  obligation  to  surrender 
its  own  citizens. 

But  as  this  exemption  from  the  obligation  to  surrender  citizens  was  doubtless 
inserted  in  these  treaties  in  deference  to  the  opinion  of  other  states,  it  is  not  probable 
that  it  was  intended  as  an  absolute  prohibition  upon  tlie  President  of  tlie  United  States  ; 
indeed,  the  wording  of  the  clause  would  seem  to  imply  a  discretion  on  the  part  of  the 
contracting  parties. 

In  1880,  the  Institute  of  International  Law,  after  an  exhaustive  discussion  of  the 
subject  of  extradition,  adopted  a  series  of  resolutions,  the  sixth  of  which  was  as 
follows :  — 

"  Between  countries  whose  criminal  legislation  rests  on  similar  foundations,  and 
which  have  confidence  in  each  other's  judicial  institutions,  the  extradition  of  their  own 
citizens  would  be  a  means  of  securing  the  good  administration  of  criminal  justice, 
because  it  ought  to  be  desirable  that  the  authorities  of  thc/orvm  delicti  commissi  should, 
if  possible,  be  called  upon  to  try  the  case." 

See  on  this  subject:  Moore's  Extradition,  I.,  152;  Dana's  Wheaton,  pp.  189-101, 
notes.  —  Ed. 

i  Short  statement  substituted  for  that  of  the  original  report.  —  Ed. 


CHAP.  11.]  UNITED    STATES    V.   DAVIS.  295 

Crimes  Act  of  1790,  ch.  36,  §  12,  on  which  this  indictment  is  founded 
gives  to  this  court  jurisdiction  of  the  crime  of  manslaughter  only  when 
committed  "on  the  high  seas."  We  do  not  absolutely  decide,  whether 
the  place  where  this  offence,  if  any,  was  committed,  was  the  high 
seas  or  not ;  because  that  might  be  affected  by  considerations  of  a  very 
delicate  and  difficult  nature,  as  whether  it  was  high  or  low  tide  ;  for  a 
place  may  at  high  M'ater  be  the  high  seas,  and  yet  at  low  water  be 
strictly  a  part  of  the  laud,  as  is  the  case  on  our  seashore,  according  to 
the  well-known  doctrine  in  Constable's  Case,  5  Co.  R.  106  a.  In  the 
present  case,  at  high  water  tlie  tide  of  the  ocean  had  full  sweep  over 
the  place  in  question  ;  and  it  may  be  matter  of  grave  consideration, 
whether,  if  the  whole  reef  was  at  the  time  covered  with  water,  the 
whole,  including  the  place  where  the  schooner  lay,  ought  not  to  be 
deemed  the  high  seas.     But  on  this  we  give  no  opinion. 

What  we  found  ourselves  upon  in  this  case  is,  that  the  offence,  if 
any,  was  committed,  not  on  board  of  the  American  ship  Hose  ;  but  on 
board  of  a  foreign  schooner  belonging  to  inhabitants  of  the  Society  Isl- 
ands, and,  of  course,  under  the  territorial  government  of  the  king  of 
the  Society  Islands,  with  which  kingdom  we  have  trade,  and  friendly 
intercourse,  and  which  our  Government  may  be  presumed  (since  we 
have  a  consul  there}  to  recognize  as  entitled  to  the  rights  and  sover- 
eignty of  an  independent  nation,  and  of  course  entitled  to  try  offences 
committed  witliin  its  territorial  jurisdiction.  I  say  the  offence  was 
committed  on  board  of  the  schooner ;  for  although  the  gun  was  fired 
from  the  ship  Bose,  the  shot  took  effect  and  the  death  happened 
on  board  of  the  schooner;  and  the  act  was,  in  contemplation  of 
law,  done  where  the  shot  took  effect.  So  the  law  Avas  settled  in  the 
case  of  Eex  v.  Coombs,  1  Leach.  Cr.  Cas.  432,  where  a  person  on  the  high 
seas  was  killed  by  a  shot  fired  by  a  person  on  shore,  and  the  offence 
was  held  to  be  committed  on  the  high  seas,  and  to  be  within  the  ad- 
miralty jurisdiction.  Of  offences  committed  on  the  high  seas  on  board 
of  foreign  vessels  (not  being  a  piratical  vessel),  but  belonging  to  per- 
sons under  the  acknowledged  government  of  a  foreign  country,  this 
court  has  no  jurisdiction  under  the  Act  of  1790,  ch.  36,  §  12.  That 
was  the  doctrine  of  the  Supreme  Court  in  United  States  v.  Palmer,  3 
Wheat.  R.  610,  and  United  States  v.  Klhitock,  5  Wheat.  R.  144,  and 
United  States  v.  Holmes,  5  Wheat.  E.  412  ;  applied,  it  is  true,  to  another 
class  of  cases,  but  in  its  scope  embracing  the  present.  We  lay  no 
stress  on  the  fact,  that  the  deceased  was  a  foreigner.  Our  judgment 
would  be  the  same,  if  he  had  been  an  American  citizen.  We  decide  the 
case  wholly  on  the  ground,  that  tlie  schooner  was  a  foreign  vessel,  be- 
longing to  foreigners,  and  at  the  time  under  the  acknowledged  jurisdic- 
tion of  a  foreign  government.    We  think,  that  under  such  circumstances. 


296  TERRITORIAL   JURISDICTION.  [PART  I. 

the  jurisdiction  over  the  offence  belonged  to  the  foreign  government, 
and  not  to  the   courts  of  the  United  States  under  the  act  of  Congress. 
The  jury  immediately  returned  a  verdict  of  not  guilty. 


STATE   V.    CHAELES    WYCKOFF. 
SuPKKME  Court  of  Kew  Jersey,  1864. 

(2  Vroom,  65.) 

Beaslet,  C.  J.  The  defendant  was  convicted  before  the  Court  of 
Oyer  and  Terminer,  on  an  indictment  containing  two  counts,  the  first 
of  which  charges  him  with  the  larceny  of  certain  goods  of  a  value 
exceeding  twenty  dollars,  and  the  other  with  receiving  goods  know- 
ing them  to  be  stolen. 

It  appeared  tliat  the  defendant  was  in  New  York  at  the  time  of  the 
theft,  and  while  in  that  State  he  made  an  arrangement  with  one  Kelly 
to  come  into  this  State  and  steal  the  articles  in  question  and  to  bring 
and  deliver  them  to  him  in  New  York.  This  arrangement  was  car- 
ried into  effect.  The  articles  being  stolen  by  Kelly  and  delivered  to 
the  defendant  in  New  York.  The  defendant  was  not  in  this  State  at 
any  time,  from  the  inception  to  the  conclusion  of  the  transaction. 
The  Court  of  Oyer  and  Terminer  have  asked  the  advisory  opinion  of 
this  court  upon  two  points. 

First.  Whether  proof  of  the  above  stated  facts  will  support  the 
indictment. 

Second.  Has  the  defendant  committed  any  offence  indictable  by 
the  laws  of  this  State? 

In  regard  to  the  first  point.  The  circumstances  proved  on  the  trial 
established  the  fact  that  Kelly  was  guilty  of  the  crime  of  grand  lar- 
ceny in  this  State.  Kelly  therefore  committed  a  felony,  and  conse- 
quently, as  the  defendant  was  not  present,  either  actually  or 
constructively,  at  the  commission  of  the  offence,  he  could  not  be 
a  principal  therein,  but  was  an  accessory  before  the  fact.  Kelly  did 
the  act  and  the  defendant's  will  contributed  to  it,  but  it  was  com- 
mitted while  he  was  too  far  from  the  act  to  constitute  him  a  principal. 
The  distinction  in  felonies  between  the  principal  and  accessories 
before  and  after  the  fact,  is  certainly  technical,  and  has  been  some- 
times regarded  as  untenable,  but  it  is  too  firmly  established  to  be 
exploded  by  judicial  authority.  It  has  always  been  regarded,  in  its 
essential  features,  as  a  part  of  the  criminal  law  of  this  State,  and  its 


CHAP.  II.]  STATE    V.    WYCKOFF.  297 

existence  is  recognized  both  in  our  statutes  and  in  a  number  of  the 
reported  decisions.  State  v.  Coojyer,  1  Green,  373,  Johnson  v.  ^io'e.  2 
Ducther,  324;   Cook  v.  State,  4  Zab.  845. 

The  first  count,  therefore,  charging  the  defendant  as  a  principal  in 
the  Larceny,  is  not  sustained  by  the  evidence.  The  crime  of  the  acces- 
sory being  dissimilar  from  that  of  the  principal  in  its  fundamental 
characteristics,  must  be  distinctly  charged  in  the  pleadings.  It  has 
never  been  supposed  that  a  count  containing  a  statement  of  facts 
evincive  of  the  fault  of  the  party  accused  as  a  principal  in  a  felony, 
was  sufficient  to  warrant  the  conviction  of  such  party  as  an  accessory. 
1  Chit.  Crim.  Law,  271,  2  id.  4;  "Wharton's  Prec.  of  Indict.  97;  State 
V.  Seraii,  4  Dutcher,  519.  In  the  case  of  Hex  v.  Plant,  7  Car.  &  P. 
575,  it  was  expressly  held  that  one  indicted  as  principal  in  a  felony 
could  not  be  convicted  of  being  an  accessory  before  the  fact.  See, 
also,  Whart.  C.  L.  115. 

Neither  will  the  second  count  of  the  indictment  sustain  the  convic- 
tion. The  evidence  shows  that  the  stolen  goods  were  received  by  the 
defendant,  with  guilty  knowledge,  in  the  State  of  Xew  York.  But 
this  was  no  offence  against  the  laws  of  this  State.  The  defendant 
therefore  cannot  be  legally  sentenced  upon  the  conviction  founded  on 
the  present  indictment. 

The  remaining  question  is,  has  the  defendant  committed  any  offence 
indictable  by  the  laws  of  this  State? 

His  act  was  to  incite  and  procure  his  agent  or  accomplice  to  enter 
this  State  and  commit  the  felony.  If  the  defendant  had  been  in  this 
State  at  the  time  of  such  procurement  and  indictment,  he  would  have 
been  guilty  as  an  accessor}^  before  the  fact;  but  what  he  did  was  done 
out  of  the  State.  Did  he  thereby  become  amenable  to  our  criminal 
jurisdiction? 

As  the  defendant  did  not  act  within  this  State  in  his  own  person, 
the  point  to  be  decided  is,  Did  he  do  such  act  in  this  State  by  con- 
struction or  in  contemplation  of  law? 

It  is  undoubtedly  true  that  personal  presence  within  the  jurisdiction 
in  which  the  crime  is  committed  is  not  in  all  cases  reqx;isite  to  confer 
cognizance  over  the  person  of  the  offender,  in  the  tribunals  of  the 
government  whose  laws  are  violated.  In  some  cases  the  maxim  ap- 
plies. Crimen  trah'it  personam.  Thus,  where  a  person  being  within 
one  jurisdiction,  maliciously  fires  a  shot  which  kills  a  man  in  another 
jurisdiction,  it  is  murder  in  the  latter  jurisdiction,  the  illegal  act 
being  there  consummated.  So  in  the  case  of  The  United  States  v. 
Davies,  4  Sumner,  485,  the  defendant  was  accused  of  shooting  from 
an  American  ship  and  killing  a  man  on  board  a  foreign  scliooner. 
Chief  Justice  Story  said,  "the  act  was,  in  contemplation  of  law,  done 


298  TERRITORIAL    JURISDICTION.  [PART  I. 

where  the  shot  took  effect.  He  would  be  liable  to  be  punished  by  the 
foreign  government,"  The  same  principle  was  recognized  by  this 
court  in  the  case  of  The  State  v.  Carter,^  3  Dutcher,  499.  So  when  a 
crime  is  committed  by  an  innocent  living  agent,  the  projector  of  such 
crime  being  absent  from  the  country  whose  laws  are  infringed.  Such 
was  the  case  of  The  Feople  v.  Adams,  3  Denio,  190.  In  this  latter 
case  the  facts  were  these :  the  defendant  was  indicted  in  the  City  of 
New  York  for  obtaining  money  from  a  firm  of  commission  merchants 
in  that  city,  by  the  exhibition  of  fictitious  receipts.  The  defendant 
pleaded  that  he  had  never  been  in  the  State  of  New  York  —  that  tlie 
receipts  were  drawn  and  signed  in  Ohio,  and  that  the  offence  was 
committed  by  their  being  presented  to  the  firm  in  New  York  by  inno- 
cent agents  employed  by  the  defendant  in  Ohio.  It  was  held  that 
such  plea  was  bad  and  disclosed  no  defence.  A  number  of  authori- 
ties maintaining  the  same  view  will  be  found  collected  in  the  opinion 
of  the  judge  who  delivered  the  decision  of  the  court  in  the  case  last 
cited. 

The  rule,  therefore,  appears  to  be  firmly  established,  and  upon  very 
satisfactory  grounds,  that  where  the  crime  is  committed  by  a  person 
absent  from  the  country  in  which  the  act  is  done,  through  the  means 
of  a  merely  material  agency  or  by  a  sentient  agent  who  is  innocent,  in 
such  cases  the  offender  is  punishable  where  the  act  is  done.  The  law 
implies  a  constructive  presence  from  the  necessity  of  the  case;  other- 
wise the  anomaly  would  exist  of  a  crime  but  no  responsible  criminal. 

But  the  more  difficult  question  remains  to  be  considered,  which  is 
—  in  case  of  a  felony  committed  here  by  a  responsible  agent,  who  is 
therefore  the  principal  felon  and  punishable  by  our  laws  —  can  the 

1  In  tliis  case  it  was  held  that  an  indictment  cliarging  a  felonious  assault  and 
battery  in  New  York,  and  that  the  party  injured  came  into  and  died  from  its  effects 
in  New  Jersey,  charges  no  crime  against  this  State;  that  tlie  New  Jersey  statute  can- 
not embrace  cases  where  the  act  complained  of  has  been  wholly  done  within  the 
territorial  limits  of  another  State  ;  that  in  such  a  case  the  State  (New  York)  in  which 
the  crime  was  committed  has  jurisdiction  and  a  New  Jersey  statute  to  punish  a  New 
York  crime  is  necessarily  void.  It  should  be  noted,  however,  that  when  the  offence 
is  committed  in  both  States,  as  in  shooting  and  killing  across  the  line,  for  instance, 
either  or  both  States  might  take  cognizance  of  the  act  and  punish  the  crime,  or  to  cite 
the  exact  language  of  the  case,  at  p.  500 :  "  This  is  not  the  case  where  a  man  stands  on 
the  New  York  side  of  the  line,  and  shooting  across  the  border,  kills  one  in  New  Jersey. 
When  that  is  so,  the  blow  is  in  fact  struck  in  New  Jersey.  It  is  the  defendant's  act  in 
this  State.  The  passage  of  the  ball,  after  it  crosses  the  boundary,  and  its  actual 
striking,  is  the  continuous  act  of  the  defendant.  In  all  cases  the  criminal  act  is  the 
impinging  of  the  weapon,  wherever  it  may  be,  on  the  person  of  the  party  injured,  and 
that  must  necessarily  he  where  tlie  impingement  happens.  Whether  the  sword,  the 
ball,  or  any  other  missile,  passes  over  a  boundary  in  the  act  of  striking,  is  a  matter  of 
no  consequence.  The  act  is  where  it  strikes,  as  mucii  where  the  party  who  strikes 
stands  out  of  the  State,  as  where  he  stands  in  it."  —  Ed. 


CHAP.  II.]  STATE   V.    WYCKOFF.  299 

procurer,  who  is  an  accessory  before  the  fact  and  whose  acts  of  pro- 
curement have  been  done  in  a  foreign  jurisdiction,  be  indicted  and 
punished  for  such  procurement  in  this  State? 

The  general  rule  of  the  law  has  always  been  that  a  crime  is  to  be 
tried  in  the  place  in  which  the  criminal  act  has  been  committed.  It 
is  not  sufficient  that  part  of  such  act  shall  have  been  done  in  such 
place,  but  it  is  the  completed  act  alone  which  gives  jurisdiction.  So 
far  has  this  strictness  been  pushed  that  it  has  been  uniformly  held, 
that  if  a  felony  was  committed  in  one  county,  the  accessory  having 
incited  the  principal  in  another  county,  such  accessory  could  not  be 
indicted  in  either.  This  technicality,  which,  when  applied  to  the 
several  counties  of  the  same  kingdom  or  state,  appears  to  have  little 
to  recommend  it,  was  nevertheless  so  firmly  established  that  it  re- 
quired the  statute  of  2  and  3  Ed.  VI.,  c.  24,  to  abolish  it,  and  this 
statute  has  been  re-enacted  in  this  State.  Nix.  Dig.  199.  Rev.,  p.  282, 
sect.  78.  And  so  in  like  manner  the  same  rigor  existed  in  cases  in 
which  death  ensued  out  of  the  kingdom  from  a  felonious  stroke  inflicted 
within  it,  it  being  decided  that  neither  the  principal  nor  accessory 
was,  under  such  circumstances,  indictable.  This  imperfection  in  the 
criminal  system  was  removed  by  the  statute  of  2  Geo.  IT.,  c.  21,  and 
which  has  been  substantially  copied  in  the  third  section  of  the  act  of 
this  State  before  referred  to  in  Nix.  Dig.  200,  siqjra.  For  the  rules 
of  law  which  were  thus  modified  by  statute,  see  3  Inst.  48;  Lacye's 
Case,  ILeo.  270;  2  Rep.  93. 

If,  then,  the  accessory  by  the  common  law  was  answerable  only  in 
the  county  in  which  he  enticed  the  principal,  and  that,  too,  when  the 
criminal  act  was  consummated  in  the  same  county,  it  would  seem  to 
follow  necessarily  in  the  absence  of  all  statutory  provision,  that  he  is 
wholly  dispunishable  when  the  enticement  to  the  commission  of  the 
offence  has  taken  place,  out  of  the  State  in  which  the  felony  has  been 
perpetrated.  Under  such  a  condition  of  affairs  it  is  not  easy  to  see 
how  the  accessory  has  brought  himself  within  the  reach  of  the  laws 
of  the  offended  State.  His  offence  consists  in  the  enticement  to  com- 
mit the  crime;  and  that  enticement,  and  all  parts  of  it,  took  place  in 
a  foreign  jurisdiction.  As  the  instrumentality  employed  was  a  con- 
scious guilty  agent,  with  free  will  to  act  or  to  refrain  from  acting,  there 
is  no  room  for  the  doctrine  of  a  constructive  presence  in  the  procurer. 
Applying  to  the  facts  of  this  case  the  general  and  recognized  princi- 
ples of  law,  it  would  seem  to  be  clear  that  the  offence  of  which  the 
defendant  has  been  guilty  is  not  such  as  the  laws  of  this  State  can 
take  cognizance  of.  We  must  be  satisfied  to  redress  the  wrong  which 
has  been  done  to  one  of  our  citizens,  and  to  vindicate  the  dignity  of 
our  laws  by  the  punishment  of  the  wrongdoer  who  came  within  our 


300  TERRITORIAL   JURISDICTrOX.  [PART  I. 

territoi'ial  limits.  As  for  the  defendant,  who  has  never  been,  either 
in  fact  or  by  legal  intendment,  within  our  jurisdiction,  he  can  be  only 
punished  by  the  authority  of  the  State  of  New  York,  to  whose  sover- 
eignty alone  he  was  subject  at  the  time  he  perpetrated  the  crime  in 
question. 

The  principle  involved  in  this  case  has  not  often  been  the  subject 
of  judicial  consideration,  nor  has  it  received  much  attention  from  the 
text  writers.  But  in  the  few  cases  to  be  found  in  the  reports  upon 
the  point,  a  view  similar  to  the  above  has  been  expressed.  The  ease 
of  The  State  v.  Moore,  6  Foster,  448,  was,  in  all  its  features,  identical 
with  that  now  before  this  court,  and  the  result  was  a  discharge  of  the 
prisoner,  on  the  ground  that  the  crime  of  the  accessory  had  not  been 
committed  within  the  jurisdiction  of  New  Hampshire. 

The  case  Ex  parte  Smith,  6  Law  Reporter,  57,  was  to  the  same 
effect.  The  same  principle  was  again  considered,  though  in  a  some- 
what different  aspect,  in  the  case  of  Tlie  State  v.  Knight,^  1  Taylor's 

1  By  a  Nortli  Carolina  statute  of  1784,  Cli.25,  §  4,  counterfeiting  and  passing  in  a 
foreign  or  neighboring  State  sucii  counterfeit  bills  of  Nortli  Carolinawas  made  punishable 
as  if  committed  in  North  Carolina.  A  Virginian  named  Kiiiglit  was  convicted  under 
this  statute,  and  on  appeal  tiie  court  said  :  "  This  State  cannot  declare  that  an  act  done 
in  Virginia  by  a  citizen  of  Virginia,  shall  be  criminal  and  punishable  in  this  State:  our 
penal  laws  can  only  extend  to  the  limits  of  this  State,  except  as  to  our  own  citizens  ; 
but  granting  that  our  Legislature  could  enact  laws  for  the  punishment  of  offences  com- 
mitted in  Virginia,  still  this  clause  only  extends  by  implication  to  acts  done  in 
Virginia  ;  and  no  penal  law  can  be  construed  by  implication  nor  otherwise  than  hy  the 
express  letter."     Defendant  was  therefore  discharged. 

In  Commonwealth  v.  Macloon,  1809,  101  Mass.  1,  it  was  held  in  an  elaborate  opinion 
by  Mr.  Justice  Gray  that  a  citizen  of  another  state  or  of  a  foreign  country  may  be  con- 
victed, under  a  statute  of  Massachusetts,  of  the  manslaugjiter  of  a  person  who  died 
within  Massachusetts,  from  injuries  inflicted  upon  him  by  the  accused  in  a  foreign 
merchant  vessel  upon  the  high  seas  ;  that  in  such  a  case  the  "  mortal  wound  given  or 
other  violence  or  injury  inflicted"  took  effect  within  and  was  therefore  punishable  in 
Massachusetts.  See  the  adverse  criticisms  of  this  case  and  its  doctrine  in  1  Bishop's 
New  Criminal  Law,  §§  llo-UO,  note  1,  pp.  60-6(3.  In  illustrating  the  doctrine  that 
acts  done  out  of  the  country  but  taking  effect  here  may  rightly  be  punished  where  they 
take  effect,  Bishop  says  (§  110  of  the  same  work)  :  "  Where  a  man,  standing  beyond 
the  outer  line  of  our  territory,  by  discharging  a  ball  over  the  line  kills  another  within 
it;  or,  himself  being  abroad,  circulates  libels  here;  or  in  like  manner  obtains  here 
goods  by  false  pretences  ;  or  does  any  other  crime  in  our  own  locality  against  our 
law ;  he  is  punishable,  though  absent,  the  same  as  if  he  were  present." 

Thus,  in  the  thoroughly  excellent  case  of  Commonwealth  v.  Blnnding,  1825,  3  Pick. 
Mass.  304,  it  was  proved  that  the  defendant  delivered  the  writing  set  forth  in  the 
indictment  to  the  printer  of  the  Providence  Gazette,  at  Providence,  in  the  State  of 
Rhode  Island,  and  that  it  was  published  in  that  paper  at  the  request  of  the  defendant, 
who  acknowledged  tliat  he  was  the  author  of  it;  it  was  likewise  proved  that  the  i>aper 
circulates  in  Uehoboth  (in  the  county  of  Hristol,  Mass.),  and  has  so  circulated  previ- 
ously to  sucli  publication  ;  and  that  the  number  containing  this  writing  was  received 
and  circulated  in  that  town.     On  this  statement  of  facts,  the  defeiulant  was  convicted 


CHAP.  II.]  STATE    V.    WYCKOFF.  301 

Rep.  (X.  C),  Q)0,  and  the  opinion  intimated  by  the  court  entirely 
accorded  with  tliose  expressed  in  the  two  cases  first  above  cited. 
These  are  the  only  judicial  examinations  of  the  matter  now  in  hand 
which  I  have  met  with  in  the  course  of  my  research. 

Upon  authority,  then,  as  well  as  upon  principle,  I  think  the  present 
indictment  cannot  be  sustained,  and  that  the  defendant  has  nut  com- 
mitted any  offence  which  is  indictable  by  force  of  the  laws  of  this  State. 

Let  the  Court  of  Oyer  and  Terminer  be  advised  accordingly. 

for  libel  and  conviction  was  affirmed  on  appeal.  See,  also,  Rex  v.  Johnson,  1804, 
7  East,  65. 

Culting's  Case,  which  excited  so  iiiucli  interest  and  comtnent  in  international  circles 
was  on  all  fours  with  this.  One  Cutting,  an  American  citizen,  published  a  lil>cl  in  a 
Te.xan  paper  reflecting  on  tlie  character  of  one  Medina,  a  Mexican.  The  paper  cir- 
culated in  Mexico,  as  in  the  case  of  Commonwealth  v.  B'anding  the  paper  circulated  in 
Massachusetts,  and  on  being  found  in  Mexico,  Cutting  was  appreiiended,  tried  and 
sentenced  to  fine  and  imprisonment.  The  American  Government  demanded  an 
indemnity  for  Cutting's  imprisonment.  See  report  on  Cutting's  Case  by  J.  B.  Moore, 
1887. 

The  position  of  the  United  States  in  Cutting's  Case,  that  the  Mexican  law  giving  to 
its  courts  the  jurisdiction  of  extraterritorial  offences,  is  contrary  to  custom  and  inter- 
national law,  and  that  the  principles  involved  in  it  are  practically  obsolete  in  practice, 
would  seem  not  to  be  borne  out  by  facts.  Aside  from  the  question  whether  tlie  com- 
mon-law doctrine  of  territorial  jurisdiction  is  tlie  more  expedient  practical  rule,  it 
may  at  least  be  said  that  it  is  by  no  means  so  universally  prevalent  as  to  warrant  the 
assertion  that  it  has  become  a  rule  of  international  law.  Not  onl}'  are  there  many 
codes  which  go  quite  as  far  in  the  direction  of  extraterritorial  jurisdiction  ns  that  of 
Mexico,  but  there  is  probably  not  a  state  which  adiieres  strictly  to  the  territorial  tlieory. 
In  the  first  place,  practically  all  states  punish  tiieir  own  citizens  for  offences  of  one 
kind  or  another  committed  in  foreign  countries.  Even  England  punishes  not  only  for 
treasonable  acts,  but  also  for  bigamy,  murder,  manslaughter  committed  abroad  by 
her  subjects.  The  laws  of  the  United  States,  too,  provide  for  the  punisiiment  of  cer- 
tain offences  committed  abroad  by  their  citizens.  Revised  Statutes,  §  5335 ;  and  see 
acts  of  August  18,  1856,  and  February  25,  1863. 

Secondly,  in  regard  to  foreigners,  there  are  a  large  number  of  codes  which  take  juris- 
diction of  offences  against  tlie  state  committed  by  them  in  foreign  states;  and  a  lesser 
number  whicii  go  farther,  and  extend  their  jurisdiction  to  offences  against  indi- 
viduals.    Of  this   number  are   Austria,    Hungary,  Italy,   Norway,    Sweden,  Russia, 

Greece,  and  Brazil,  as  well  as  Mexico. 

As  previously  said,  the  Cutting  Case  is  similar  to  that  of  Commonwealth  v.  Blanding, 
being  a  libel  uttered  in  Texas,  but  circulated  and  having  its  effect  in  Mexico;  is  the 

offence  different  in  principle  from  that  of  wounding  a  man  in  one  state  by  firing  across 

the  boundary  from  another  st;ite  ? 

Among  jurists  there  is  a  wide  difference  of  opinion  in  regard  to  the  merits  of  the 

two  systems  —  the  "  territorial  "  and  the  "personal  "  theories  of  jurisdiction.      (T.  E. 

Holland,   Jurisprudence,  9th  ed.,  pp.  400-405;  F.  Wharton,    Philosophy  of  Criminal 

Law,  p.  309  et  seq.  ;   L.   v.  Bar,    Private   International  Law,  Translation    by  G.  U. 

Gillespie,  p.  620  et  seq. ;  Wharton's  Conflict  of  Laws,  §  1810  ;  "  Case  of  A.  K.  Cutting, 

by  the  Minister  of  Foreign  Relations  of  the  Republic  of  Mexico,"  1888;  Hall's  Foreign 

Powers  and  Jurisdiction  of  the  British  Crown,  1-15.)  — Ed. 


302  TERRITORIAL   JURISDICTION.  [PART  I. 


THE  UmTED   STATES   v.   THOMAS   J.   L.    S:\riLEY  et  al. 
United  States  Circuit  Court,  District  of  California,  1864. 

(6  Sawi/er,  640.) 

The  steamer  Golden  Gate  left  Sau  Francisco  for  Panama  on  July 
21,  1862,  and  had  on  board  "  treasure  "  amounting  to  $1,450,000.  On 
July  27,  when  three  miles  and  a  half  from  the  Mexican  shore,  fire  broke 
out,  the  steamer  headed  for  the  shore  and  went  to  pieces  about  two 
hundred  and  fifty  feet  from  the  shore,  at  a  point  fifteen  miles  north  of 
Manzanillo,  in  Mexico.  Of  the  money  on  board  $1,200,000  were 
ultimately  recovered  in  port  by  Smiley  and  his  associates.  The  ship- 
pers and  Smiley  disagreeing  about  his  share  of  the  recovered  treasure, 
he  was  indicted  in  March,  1864,  in  U.  S.  Circuit  Court  for  plundering 
and  stealing  the  treasure  from  the  Golden  Gate,  under  the  ninth  sec- 
tion of  act  of  Congress  of  March  3,  1825  (4  St.  L.,  116)  which  provides 
"  that  if  any  person  .  .  .  shall  plunder,  steal  or  destroy  any  money, 
goods,  merchandise  or  other  effects  from  or  belonging  to  any  ship  or 
vessel  or  boat  or  raft,  which  shall  be  wrecked,  lost,  stranded,  or  cast 
away  upon  the  sea,  or  upon  any  reef,  shore,  bank,  or  rocks  of  the  sea, 
or  in  any  other  place  within  the  admiralty  and  maritime  jurisdiction 
of  the  United  States,"  he  "  shall  be  deemed  guilty  of  a  felony,"  &c.^ 

By  the  court,  Mr.  Justice  Field.  We  are  not  prepared  to  decide 
that  the  statute  does  not  apply  to  a  case  where  the  vessel  has  gone 
to  pieces,  to  which  the  goods  belonged  of  which  larceny  is  alleged.  It 
would  fail  of  one  of  its  objects  if  it  did  not  extend  to  goods,  which  the 
officers  and  men  of  a  stranded  or  wrecked  vessel  had  succeeded  in 
getting  ashore,  so  long  as  a  claim  is  made  by  them  to  the  property, 
though  before  its  removal  the  vessel  may  have  been  broken  up.  We 
are  inclined  to  the  conclusion  that,  until  the  goods  are  removed  from 
the  place  where  landed,  or  thrown  ashore,  from  the  stranded  or  wrecked 
vessel,  or  cease  to  be  under  the  charge  of  the  officers  or  other  parties 
interested,  the  act  would  apply  if  a  larceny  of  them  were  committed, 
even  though  the  vessel  may  in  the  mean  time  have  gone  entirely  to 
pieces  and  disappeared  from  the  sea.  But  in  tliis  case  the  treasure 
taken  had  ceased  to  be  under  the  charge  of  the  officers  of  the  Golden 
Gate,  or  of  its  underwriters,  when  the  expedition  of  Smiley  was  fitted 
out,  and  all  efforts  to  recover  the  property  had  been  given  up  by  them. 
The  treasure  was  then  in  the  situation  of  derelict  or  abandoned  prop- 

1  This  statement  is  substituted  for  that  of  the  report.  —  Ed. 


CHAP.  II.]  UNITED   STATES   V.    SMILEY.  303 

erty,  which  could  be  acquired  by  any  one  who  might  have  the  energy 
and  enterprise  to  seek  its  recovery.  In  our  judgment  the  act  was 
no  more  intended  to  reach  cases  where  property  thus  abandoned  is 
recovered,  than  it  does  to  reach  property  voluntarily  thrown  into  the 
sea,  and  afterwards  fished  from  its  depths. 

But  if  tlie  act  covered  a  case  where  the  property  was  recovered  after 
its  abandonment  by  the  officers  of  the  vessel  and  others  interested  in 
it,  we  are  clear  that  the  circuit  court  has  not  jurisdiction  of  the  offence 
here  charged.  The  treasure  recovered  was  buried  in  the  sand  several 
feet  under  the  water,  and  was  within  one  hundred  and  fifty  feet  from 
the  shore  of  Mexico.  The  jurisdiction  of  that  country  over  all  offences 
committed  within  a  marine  league  of  its  shore,  not  on  a  vessel  of 
anotlier  nation,  was  complete  and  exclusive. 

Wheaton,  in  his  treatise  on  International  Law,  after  observing  that 
"  the  maritime  territory  of  every  state  extends  to  the  ports,  harbors, 
bays,  and  mouths  of  rivers  and  adjacent  parts  of  the  sea  inclosed  by 
headlands,  belonging  to  the  same  state,"  says :  "  The  general  usage  of 
nations  superadds  to  this  extent  of  territorial  jurisdiction  a  distance 
of  a  marine  league,  or  as  far  as  a  cannon-shot  will  reach  from  the 
shore,  along  all  the  coasts  of  the  state.  Within  these  limits  its  rights 
of  property  and  territorial  jurisdiction  are  absolute,  and  exclude  those 
of  every  other  nation."     (Pt.  2,  c.  4,  sec.  6.) 

The  criminal  jurisdiction  of  the  government  of  the  United  States  — 
that  is,  its  jurisdiction  to  try  parties  for  offences  committed  against 
its  laws  —  may  in  some  instances  extend  to  its  citizens  everywhere. 
Thus,  it  may  punish  for  violation  of  treaty  stipulations  by  its  citizens 
abroad,  for  offences  committed  in  foreign  countries  where,  by  treaty, 
jurisdiction  is  conceded  for  that  purpose,  as  in  some  cases  in  China  and 
in  the  Barbary  states  ;  it  may  provide  for  offences  committed  on  de- 
serted islands,  and  on  an  uninhabited  coast,  by  the  officers  and  seamen 
of  vessels  sailing  under  its  flag.  It  may  also  punish  derelictions  of 
duty  by  its  ministers,  consuls,  and  other  representatives  abroad.  But 
in  all  such  cases  it  will  be  found  that  the  law  of  Congress  indicates 
clearly  the  extraterritorial  character  of  the  act  at  which  punishment 
is  aimed.  Except  in  cases  like  these,  the  criminal  jurisdiction  of  the 
United  States  is  necessarily  limited  to  their  own  territory,  actual  or 
constructive.  Their  actual  territory  is  coextensive  with  their  posses- 
sions, including  a  marine  league  from  their  shores  into  the  sea. 

This  limitation  of  a  marine  league  was  adopted  because  it  was 
formerly  supposed  that  a  cannon-shot  would  only  reach  to  that  extent. 
It  is  essential  that  the  absolute  domain  of  a  country  should  extend 
into  the  sea  so  far  as  necessary  for  the  protection  of  its  inhabitants 
against  injury  from  combating  belligerents  while  the  country  itself  is 


304  TERRITORIAL   JURISDICTION.  [PART  I. 

neutral.  Since  the  great  improvement  of  modern  times  in  ordnance, 
the  distance  of  a  marine  league,  which  is  a  little  short  of  three  English 
miles,  may,  perhaps,  have  to  be  extended  so  as  to  equal  the  reach  of 
the  projecting  power  of  modern  artillery.  The  constructive  territory 
of  the  United  States  embraces  vessels  sailing  under  their  flag;  wher- 
ever they  go  they  carry  the  laws  of  their  country,  and  for  a  violation 
of  them  their  officers  and  men  may  be  subjected  to  punishment.  But 
when  a  vessel  is  destroyed  and  goes  to  the  bottom,  the  jurisdiction  of 
the  country  over  it  necessarily  ends,  as  much  so  as  it  would  over  an 
island  which  should  sink  into  the  sea. 

In  this  case  it  appears  that  the  Golden  Gate  was  broken  up ;  not  a 
vestige  of  the  vessel  remained.  Whatever  was  afterwards  done  with 
reference  to  property  once  on  board  of  her,  which  had  disappeared 
under  the  sea,  was  done  out  of  the  jurisdiction  of  the  United  States 
as  completely  as  though  the  steamer  had  never  existed. 

"We  are  of  opinion,  therefore,  that  the  Circuit  Court  has  no  jurisdic- 
tion to  try  the  offence  charged,  even  if,  under  the  facts  admitted  by 
the  parties,  any  offence  was  committed.  According  to  the  stipulation, 
judgment  sustaining  the  demurrer  will  be,  therefore,  entered  and  the 
defendants  discharged.^ 

^"  In  Kngland  ami  America,  the  jurisdiction  is  generally  assumed  over  its  citizens 
in  re.«i>ect  to  all  civil  acts,  transactions,  rights,  or  duties  done  or  arising  abroad.  Tliis 
is  true,  even  though  the  act  be  a  tort,  and  though  it  amount  to  a  breach  of  the  peace. 
Thus  a  British  subject  is  liable  to  a  civil  action  in  England  for  an  assault  and  battery 
committed  by  him,  say  in  Italy.  Tlie  same  would  be  true  in  tlie  United  States.  But 
by  a  very  ancient  principle  of  the  Knglish  common  law,  adopted  in  tliis  country,  all 
crimes  are  strictly  local,  and  the  offenders  are  justiciable  only  in  the  countries  where 
the  criminal  act  is  done."     Pomeroy's  Int.  Law,  205. 

It  is,  liowever,  true  tiiat  in  a  few  instances  English  and  American  courts  take  jurisdic- 
tion of  crimes  connnitted  by  their  respective  subjects  and  citizens  beyond  their  terri- 
torial limits,  other  than  on  the  high  seas,  but  they  do  not,  as  is  commonly  the  case 
on  the  Continent,  try  foreigners  for  offences  against  their  municipal  laws. 

In  Macleod  v.  Atti/.-Geii.,  1891,  A.  C.  455,  Halsbury,  L.  C,  laid  down  as  English  law 
that  "all  crime  is  local.  The  jurisdiction  over  the  crime  belongs  to  the  country  where 
the  crime  is  committed,  and,  except  over  her  own  subjects.  Her  Majesty  and  the 
Imperial  Legislature  lias  no  power  whatever." 

"  It  is,  however,  a  decided  and  settled  principle  in  the  English  and  American  law, 
that  the  penal  laws  of  a  country  do  not  reacli  in  tlieir  disabilities  or  penal  effects,  beyond 
the  jurisdiction  where  they  are  established.  FoUiott  v.  Oijden,  1  H.  Black.  12-3,  135; 
Lord  Ellenborough,  Woljf  \.  Oxhohn,  6  M.  &  S.  99;  Commonwealth  of  Massachusetts  v. 
Green,  17  Mass.  514,  539-543  ;  Scoville  v.  Canfiekl,  14  Johns.  338,  440"  (1  Kent,  Com. 
38,  note  b).  See  also,  U.  S.  v.  Pelican  Ins.  Co.,  1887,  127  U.  S.  205,  289-91  and  Hall, 
Int.  Law,  218-222.  — Ed. 


CHAP.  II.]  BURON  V.   DENMAN.  305 


Section  14.  —  Extraterritorial  Acts  by  Order  of  the  State. 


BUROX   V.   DENMAN. 
Court  of  Exchequer,  1848. 

(2  Exchequer,  167.) 

Parke,  B.^  (in  summing  up).  — With  respect  to  the  issue,  whether 
the  plaintiff  was  possessed  of  these  slaves,  your  verdict  must  be  for 
the  plaintiff.  The  law  on  the  subject  of  slaves  has  been  settled  by  the 
case  of  Le  Louis,  2  Dod.  210,  which  has  been  referred  to.  That  case 
Avas  decided,  in  the  year  1817,  by  Sir  William  Scott,  who  went  fully 
into  the  question  of  the  legality  of  the  slave  trade,  and  laid  down  cer- 
tain positions,  which  have  since  been  acquiesced  in,  both  in  this  country 
and  abroad.  Those  positions  are,  first,  that  dealers  in  slaves  are  not 
pirates  by  the  law  of  nations,  and  can  only  be  made  so  by  and  accord- 
ing to  the  terms  of  a  treaty  with  the  country  to  which  they  belong 
prohibiting  the  slave  trade  ;  secondly,  that  trading  in  slaves  is  not  a 
crime  by  the  law  of  nations  ;  thirdly,  that  the  right  of  stopping  and 
searching  ships  in  time  of  peace  is  not  a  right  which  can  belong  to  any 
nation  except  by  contract  with  the  nation  to  which  such  ships  beloiig; 
and,  fourthly,  that  if  there  be  a  law  in  a  particular  country  jorohibiting 
the  slave  trade,  it  is  not  open  to  every  one  to  piinish  the  offender 
against  that  law,  but  proceedings  must  be  taken  in  the  tribunals  of  his 
own  country.  Those  propositions  being  clear,  a  question  arises, 
whether  the  plaintiff  can  maintain  this  action  for  taking  away  his 
slaves.  It  is  not  necessary  to  decide  whether,  if  he  had  been  simply 
in  the  actual  possession  of  slaves,  using  them  as  slaves,  he  could  have 
recovered  against  any  person  who  took  them  away  :  on  that  point  it  is 
not  necessary  to  give  an  opinion,  because,  according  to  the  evidence 
on  both  sides,  he  was  living  at  Gallinas,  where  it  was  lawful  to  possess 
slaves.  It  is  contended  that,  by  the  law  of  Spain,  the  plaintiff  cannot 
possess  a  property  in  slaves  for  the  purpose  of  exporting  them,  as 
slaves,  to  the  West  Indies.  However,  there  is  no  evidence  of  such 
law,  and  we  are  all,  therefore,  of  opinion  that  the  second  and  four- 
teenth issues,  both  as  to  the  slaves  and  the  goods,  must  be  found 
for  the  plaintiff. 

The  principal  question  is,  whether  the  conduct  of  the  defendant,  in 
carrying  away  the  slaves,  and  committing  the  other  alleged  trespasses, 

1  Staten)ent  of  the  case  is  omitted.  —  Ed. 
20 


806  TERIIITOKIAL   JURISDICTION.  [PART  I. 

can  be  justified  as  an  act  of  state,  done  by  authority  of  the  Crown.  It 
is  not  contended  that  there  was  any  previous  authorit}'.  If  the 
defendant  had  merely  instructions  according  to  the  terms  of  the  treaty 
set  out  in  the  act  of  Parliament,  those  instructions  would  only  have 
extended  to  the  stopping  of  ships  on  the  high  seas,  within  the  limits 
agreed  to  by  the  treaty  with  the  Spanish  crown.  Therefore  the  justi- 
fication of  the  defendant  depends  upon  the  subsequent  ratification  of 
his  acts.  A  well-known  maxim  of  the  law  between  private  individuals 
is,  '''Omuis  ratihabitio  retrotrahitur  et  mandato  aequiparatur."  If,  for 
instance,  a  bailiff  distrains  goods,  he  may  justify  the  act  either  by  a 
previous  or  subsequent  authority  from  the  landlord  ;  for,  if  an  act  be 
done  by  a  person  a^  agent,  it  is  in  general  immaterial  whether  the 
authority  be  given  prior  or  subsequent  to  the  act.  If  the  bailiff  so 
authorized  be  a  trespasser,  the  person  whose  goods  are  seized  has  his 
remedy  against  the  principal.  Therefore,  generally  speaking,  between 
subject  and  subject,  a  subsequent  ratification  of  an  act  done  as  agent  is 
equal  to  a  prior  authority.  That,  however,  is  not  universally  true.  In 
the  case  of  a  tenant  from  year  to  year,  who  has,  by  law,  a  right  to  a 
half-year's  notice  to  quit,  if  such  notice  be  given  by  an  agent,  without 
the  authority  of  the  landlord,  the  tenant  is  not  bound  by  it.  Such 
being  the  law  between  private  individuals,  the  question  is  whether  the 
act  of  the  sovereign,  ratifying  the  act  of  one  of  his  officers,  can  be 
distinguished.  On  that  subject  I  have  conferred  with  my  learned 
brethren,  and  they  are  decidedly  of  opinion  that  the  ratification  of  the 
Crown,  communicated  as  it  has  been  in  the  present  case,  is  equivalent 
to  a  prior  command.  I  do  not  say  that  I  dissent;  but  I  express  my 
concurrence  in  their  opinion  with  some  doubt,  because  on  reflection 
there  appears  to  me  a  considerable  distinction  between  the  present  case 
and  the  ordinary  case  of  ratification  by  subsequent  authority  between 
private  individuals.  If  an  individual  ratifies  an  act  done  on  his 
behalf,  the  nature  of  the  act  remains  unchanged,  it  is  still  a  mere 
trespass,  and  the  party  injured  has  his  option  to  sue  either;  if  the 
Crown  ratifies  an  act,  the  character  of  the  act  becomes  altered,  for 
the  ratification  does  not  give  the  party  injured  the  double  option  of 
bringing  his  action  against  the  agent  who  committed  the  trespass  or 
the  principal  who  ratified  it,  but  a  remedy  against  the  Crown  only 
(such  as  it  is),  and  actually  exempts  from  all  liability  the  person  who 
commits  the  trespass.  "Whether  the  remedy  against  the  Crown  is  to 
be  pursued  by  petition  of  right,  or  whether  the  injury  is  an  act  of 
state  without  remedy,  except  by  appeal  to  the  justice  of  the  state 
which  inflicts  it,  or  by  application  of  the  individual  suffering  to  the 
government  of  his  country,  to  insist  upon  compensation  from  the 
government  of  this  —  in  either  view,  the  wrong  is  no  longer  action- 


CHAP.  II.]  BURON   V.    DENMAN.  807 

able.  I  do  not  feel  so  strong  upon  the  point  as  to  say  tliat  I  dis- 
sent from  the  opinion  of  my  learned  brethren;  therefore,  yon  have 
to  take  it  as  the  direction  of  the  court,  that  if  the  Crown,  with 
knowledge  of  what  has  been  done,  ratified  the  defendant's  act  by 
the  Secretaries  of  State  or  the  Lords  of  the  Admiralty,  this  action 
cannot  be  maintained.  In  the  documents  which  have  been  read  there 
is  ample  evidence  of  ratification,  for  the  Secretary  of  State  for  Foreign 
Affairs,  the  Lords  of  the  Admiralty,  and  the  Secretary  of  State  for 
the  Colonial  Department,  on  receiving  the  report  of  the  Governor  of 
Sierra  Leone,  and  the  account  of  the  transactions  given  by  the  defend- 
ant himself,  expressed  their  approbation  of  what  he  had  done.  The 
acts,  indeed,  have  never  been  published,  and  that  is  one  of  the  cir- 
cumstances which  created  a  doubt  in  my  mind.  But,  although  the 
ratification  was  not  known  before  this  action  was  commenced,  that 
fact  makes  no  difference  in  the  opinion  of  the  court.  A  previous 
command  would  be  unknown,  if  given  verbally  ;  and  a  subsequent 
ratification,  though  unknown,  will  have  the  same  effect. 

It  is  argued,  on  the  part  of  the  plaintiff,  that  the  Crown  can  only 
speak  by  an  authentic  instrument  under  the  Great  Seal,  and  that, 
therefore,  the  ratification  ought  to  have  been  under  the  Great  Seal. 
We  are  clearly  of  opinion,  that,  as  the  original  act  would  have  been 
an  act  of  the  Crown,  if  communicated  by  a  written  or  parol  direction 
from  the  Board  of  Admiralty,  so  this  ratification,  communicated  in 
the  way  it  has  been,  is  equally  good.  I  should  observe  that  the 
court  "are  of  opinion  that  it  is  not  necessary  for  the  defendant  to 
prove  the  pleas  which  expressly  state  the  authority  of  the  Crown  ; 
for  if  this  act,  by  adoption,  becomes  the  act  of  the  Crown,  the 
seizure  of  the  slaves  and  goods  by  the  defendant  is  a  seizure  by  the 
Crown,  and  an  act  of  state  for  which  the  defendant  is  irresponsible, 
and,  therefore,  entitled  to  a  verdict  on  the  plea  of  "Not  guilty." 

The  jury  found  that  the  Crown  had  ratified  the  act  of  the  defendant, 
with  full  knowledge  of  what  he  had  done,  whereupon  a  verdict  was 
taken  for  him  on  the  4th,  9th,  and  16th  pleas.  A  verdict  was  found 
for  the  plaintiff  on  the  pleas  of  not  possessed  of  the  slaves  and  goods  ; 
and  the  plea  of  "  Not  guilty "  was  entered,  by  consent,  for  the 
plaintiffs. 

F.  Robinson  tendered  a  bill  of  exceptions  to  the  above  ruling  ;  but 
the  plaintiff  afterwards  obtained  an  order  to  discontinue,  certain  terms 
of  settlement  of  this  and  other  similar  actions  having  been  agreed  to.^ 

1  In  speaking  of  acts  of  state,  Sir  James  Stephen  uses  the  following  well-chosen 
language  :  "  The  leading  case  on  this  subject  is  Buron  v.  Denman.  *  *  *  Tiiis  principle 
lias  been  asserted  and  acted  upon  in  many  later  cases.  One  of  the  most  pointed  is 
The  Secretary  of  State  for  India  v.  Kamnchee  Daije  Sahiba.     In  this  case  the  Uaj.ih  of 


308  TERKITORIAL  JURISDICTION.  [PART  I. 


Section  15.  —  Extraterritorial  Acts    done   by  a  State,  in  Self- 

Defence. 


COMMONWEALTH  v.   BLODGETT   AND  ANOTHER. 

Supreme  Judicial  Court  of  Massachusetts,  1846. 

(12  Metcalf,  56). 

Sha-w,  C.  J.^  The  great  Rhode  Island  controversy,  threatening,  and 
at  one  time  involving,  the  dangers  and  troubles  of  insurrection  and 

Tanjore,  having  died  without  issue  male,  the  East  India  Company  seized  tlie  Rajali  on 
the  ground  that  the  dignity  was  extinct  for  want  of  a  male  heir,  and  that  the  property 
lapsed  to  the  British  Government.  The  judicial  committee  of  tlie  Privy  Council  lield, 
on  a  full  examination  of  the  facts,  tliat  tlie  property  claimed  by  the  Rajali's  widow 
"had  been  seized  by  the  British  Government,  acting  as  a  sovereign  power,  tiirougii  its 
delegate,  the  East  India  Company,  and  tliat  tlie  act  so  done,  with  its  consequences, 
was  an  act  of  state  over  which  the  Supreme  Court  of  Madras  had  no  jurisdiction. 
*  *  *  Even  if  a  wrong  had  been  done,  it  is  a  wrong  for  which  no  municipal  court  can 
aflord  a  remedy." 

"  In  order  to  avoid  misconception  it  is  necessary  to  observe  that  the  doctrine  as  to 
acts  of  state  can  apply  only  to  acts  which  affect  foreigners,  and  wliicli  are  done  by  the 
orders  or  with  the  ratification  of  the  sovereign.  As  between  the  sovereign  and 
his  subjects  there  can  be  no  such  thing  as  an  act  of  state.  Courts  of  law  are 
established  for  tiie  express  purpose  of  limiting  public  authority  in  its  conduct  towards 
individuals.  If  one  British  subject  puts  another  to  death  or  destroys  his  property  by 
the  express  command  of  the  King,  that  command  is  no  protection  to  the  person  who 
executes  it  unless  it  is  in  itself  lawful,  and  it  is  the  duty'of  the  proper  courts  of  justice 
to  determine  whether  it  is  lawful  or  not.  On  this  ground  the  courts  were  prepared  to 
examine  into  tiie  legality  of  the  acts  done  under  Governor  Eyre's  authority  in  the  sup- 
pression of  the  insurrection  in  Jamaica.  The  acts  affected  British  subjects  only.  But 
as  between  British  subjects  and  foreigners,  the  orders  of  the  Crown  justify  what  tiiey 
command  so  far  as  British  courts  of  justice  are  concerned.  In  regard  to  civil  rights, 
this,  as  I  have  shown,  has  been  established  by  express  and  solemn  decisions  ;  and  it  is  im- 
possible to  suppose  that  a  man  should  be  a  criminal  when  he  is  not  even  a  wrongdoer," 
(Stephen's  History  of  Criminal  Law,  Vol.  II.,  pp.  G4-65.)  See,  also,  Pollock's  Torts, 
8th  ed.,  pp.  110-113.  Dicey  (Law  of  the  Constitution,  5th  ed.,  p.  287)  says  :  "  Buron  v. 
Denman,  2  Ex.,  167,  is  sometimes  cited  as  showing  that  obedience  to  the  orders  of  the 
Crown  is  a  legal  justification  to  an  officer  for  committing  a  breach  of  law,  but  the 
decision  in  that  case  does  not,  in  any  way,  support  the  doctrine  erroneously  grounded 
upon  it.  What  the  judgment  in  Baron  v.  Denman  shows  is  that  an  act  done  by  an 
English  military  or  naval  officer  in  a  foreign  country  to  a  foreigner  in  discharge  of 


1  Statement  of  the  case,  as  well  as  part  of  the  opinion,  omitted.  For  a  detailed 
statement  of  the  rebellion  out  of  wliich  the  case  in  the  text  arose,  see  A.  M.  Mowry's 
Dorr  War,  1901.  — Ed. 


CHAP,  ir.]  COMMONWEALTH   V.   BLODGETT.  309 

civil  war,  out  of  which  this  case  grew,  having  happily  passed  away, 
the  case  itself  has  lost  much  of  the  interest  with  which  it  was  once 
invested.  It  presents  questions  of  unusual  magnitude  and  importance, 
lying  beyond  the  scope  of  those  investigations  with  which  the  adminis- 
tration of  the  criminal  law  is  usually  conversant;  but  happily  they  are 
questions  of  rare  occurrence.  We  shall  allude  to  the  facts,  very  briefly, 
to  juake  the  points  intelligible. 

The  indictment  was  originally  returned  against  three  persons,  of 
whom  one  was  acquitted  and  the  others  convicted.  It  was  founded  on 
the  provisions  of  the  llev.  Sts.,  c.  125,  §  20,  which  prohibit  the  unlaw- 
ful and  forcible  seizure,  imprisonment,  or  abduction  of  persons. 

The  proof,  on  the  part  of  the  prosecution,  tended  to  show  that  the 

orders  received  from  the  Crown  may  be  an  act  of  war,  but  does  not  constitute  any 
breacli  of  law  for  wiiich  an  action  can  be  brought  against  the  officer  in  an  Englisli 
court.  Compare  Feather  v.  The  Queen,  6  B.  &  S.,  257,  295,  per  curiam."  See  f  urtlier, 
Dobree  v.  Napier,  1836,  2  Bingliam's  New  Cases,  781,  in  which  the  command  of  the 
Queen  of  Portugal  was  held  sufficient  justification  for  seizure  of  plaintiff's  vessel  by 
a  British  officer  servini;  temporarily  in  the  Portuguese  Navy;  Underhill  v.  Her- 
nandez, 1897,  168  U.  S.  250,  in  which  the  same  doctrine  was  applied.  McLeod's  Case, 
famous  in  the  annals  of  diplomacy,  is  the  best  known  American  case  on  this  subject. 
The  account  in  Underhill  v.  Hernandez,  1895,  25  U.  S.  Appeals,  673,  mHe,  67,  briefly 
states  the  facts  and  decision.  See,  also,  People  v.  McLeod,  1841,  25  Wend.  483, 
1  Hill,  375. 

In  speaking  of  the  New  York  court,  Mr.  Webster  said :  "  I  was  utterly  surprised  at  the 
decision  of  the  court  on  the  habeas  corpus.  On  tiie  peril  and  risk  of  my  professional 
reputation,  I  now  say  that  the  opinion  of  the  court  of  New  York  is  not  a  respectable 
opinion,  either  on  account  of  the  result  at  which  it  arrives,  or  the  reasoning  on  wiiich 
it  proceeds."  Webster's  Works,  Vol.  V.,  p.  129.  See,  also,  23  Wend.  App.  and  3  Hill, 
App.,  for  criticism  and  defence  of  Justice  Co  wen's  opinion  in  25  Wend.  483,  566. 

In  the  above  instances  the  ratification  of  the  agent's  act  was  e.xpress,  but  it  need  not 
be  so;  tacit  acquiescence  is  under  certain  circumstances  sufficient.  In  the  Holla,  1807, 
6  Rob.  364,  Sir  William  Scott  said :  "  It  has  been  also  farther  contended  that  the  com- 
mander, in  this  expedition  particularly,  did  not  possess  this  authority  ;  because  it  has 
appeared  from  the  result  of  a  subsequent  inquiry  into  his  conduct  that  he  had  acted 
irregularly  in  entering  into  it  without  orders.  But  however  irregularly  lie  may  have 
acted  towards  his  own  government  the  subsequent  conduct  of  government  in  adopting 
that  enterprise,  by  directing  a  further  extension  of  that  conquest,  will  have  the  effect 
of  legitimating  the  acts  done  by  him,  so  far  at  least  as  the  subjects  of  other  countries 
are  concerned.  The  government  has  not  disclaimed  the  acquisitions  as  obtained  wrong- 
fully ;  on  the  contrary  they  have  recognized  his  acts  by  seizing  Maldonado,  and  by 
retaining  the  footing  which  had  been  acquired  for  them  in  that  country,  thereby  ex- 
pressing their  recogi\ition  of  the  seizure,  as  a  seizure  made  by  the  forces  of  this 
country  validly  applied.  I  am  therefore  of  opinion  that  the  blockade  is  not  to  be  im- 
peached on  the  ground  of  want  of  regular  authority;  and  I  have  no  hesitation  in  pro- 
nouncing that,  however  irregularly  Sir  Home  Popham  may  be  deemed  to  have  acted 
towards  his  own  government,  it  is  that  for  which  he  is  in  no  manner  answerable  to 
other  states;  and  that  it  is  not  open  to  the  individual  subjects  of  other  countries 
to  dispute  the  validity  of  the  blockade  on  that  account."  —  Ed. 


310  TERRITORIAL  JURISDICTION.  [PART  T. 

defendants,  ■with  about  twenty  other  persons,  armed  with  military 
weapons,  about  the  hour  of  one  o'clock  at  night,  broke  and  entered  the 
house  of  Jeremiali  Crooks,  who  kept  a  tavern  in  Bellingham,  in  this 
count}',  and  there  seized  and  bound  the  four  persons  named  in  the  in- 
dictment, to  wit,  William  T.  Olney,  Oliver  Ballon,  Arnold  Whipple, 
and  Timothy  Walker,  kept  them  there  some  hours  in  custody,  and  then 
carried  them  bound  to  Rhode  Island.  Some  circumstances  of  aggrava- 
tion, in  the  conduct  of  the  defendants,  are  stated  in  the  bill  of  excep- 
tions, which  seem  not  material  to  any  principle  involved  in  the  case. 

It  will  not  be  necessary  to  recapitulate  or  even  make  a  summary  of 
the  facts.  They  are  fully  detailed  in  the  bill  of  exceptions.  Those 
that  concern  these  defendants  more  particularly  are  as  follows :  That 
an  organized  attempt  was  made  to  overthrow  the  existing  government 
of  tlie  State,  by  force  of  arms;  that  the  Lsgislature  had,  by  an  act  in 
due  form,  declared  the  State  to  be  under  martial  law;  that  AVilliam  G. 
McNeill,  Esq.,  had  been  appointed  major-general  and  commander  in 
chief  of  the  forces  raised  by  the  State  to  oppose  the  insurrection;  that 
the  insurgents,  organized  and  in  military  array,  were  stationed,  in 
some  force,  at  Chepachet  and  Woonsocket,  villages  bordering  on  the 
line  of  Massachusetts.  It  further  appears,  that  on  the  evening  of  the 
27th  of  June,  the  camp  of  the  insurgents,  at  Chepachet,  and  other  per- 
sons there  assembled,  were  advised  to  disperse;  that  they  did  not 
afterwards  appear  in  any  considerable  force,  but  tliat  fears  were  enter- 
tained, by  the  people  of  Rhode  Island,  that  they  would  again  assemble 
within  the  limits  of  Connecticut  or  Massachusetts,  and  again  annoy 
the  people  of  Rhode  Island ;  that  on  the  29th,  an  order  was  publislied, 
stating  that  there  was  no  longer  a  necessity  for  the  continuance  of  the 
troops  in  general  in  the  field,  and  that  they  might  return  to  their 
several  homes  ;  that  various  orders  were  given,  with  a  view  to  arresting 
the  fugitives,  whether  within  the  limits  of  the  State  or  not,  to  the 
extent  of  fifty  miles  from  Chepachet;  that  by  order  of  Major  Martin, 
the  defendant  Blodgett,  who  was  in  the  military  service  of  the  State, 
with  the  other  defendant,  Hendrick,  as  a  guide,  with  about  twenty 
men,  proceeded,  as  before  stated,  to  Crooks's  tavern  in  Bellingham, 
and  there  found  and  arrested  the  four  persons  named,  who  had  been 
in  arms  against  the  State,  but  were  not  then  in  arms,  or  engaged 
with  others  in  any  military  operation;  that  the  neighborhood  was 
peaceful  and  quiet,  the  house  was  fastened,  and  the  inmates  asleep. 

Upon  these  facts,  stated  more  at  large  in  the  bill  of  exceptions,  the 
counsel  for  the  defendants  prayed  the  court  to  instruct  the  jury,  that 
if  they  found  that  the  said  Olney  and  others  were  citizens  of  Rhode 
Island,  and  had  been  in  arms  as  insurgents,  as  aforesaid,  against  said 
State,  and,  upon  the  approach  of  the  troops  of  said  State,  had  fresh 


CHAP.  II  ]  .COMMOJSTWEALTH   V.    BLODGETT.  311 

fled  from  the  insurgent  camp  to  Massachusetts,  for  refuge  from  the 
authorities  and  troops  of  Rhode  Island  merely,  they  were  not  in  the 
peace  of  Massachusetts,  etc.  The  court  declined  so  to  instruct,  but  did 
instruct  the  jury,  that  if  Rhode  Island  was  in  a  state  of  civil  war,  and 
said  Oiney  and  others  stood  in  the  relation  contemplated,  yet,  upon 
crossing  the  lines  of  Massachusetts,  they  were  in  the  peace  of  the  Com- 
monwealth, and  within  the  protection  of  her  laws,  exempt  from  the 
pursuit  of  the  authorities  and  troops  of  Rhode  Island;  and  that  the 
defendants  were  criminally  responsible  for  capturing  the  said  Olney 
and  others,  within  the  boundaries  of  Massachusetts. 

The  court  are  of  opinion  that  this  instruction  was  correct.  It  has 
been  argued  that  the  State  of  Rhode  Island,  and  the  other  States,  under 
the  circumstances  in  which  she  was  placed,  stood  in  the  relation  of 
foreign  sovereign  States,  one  of  which  was  at  war,  and  the  other  neu- 
tral ;  and  we  were  referred  to  authorities  from  the  laws  of  nations,  to 
ascertain  their  respective  rights  and  duties.  It  would  be  dangerous, 
perhaps  impracticable,  to  adopt  this  reasoning  to  its  full  extent,  and 
carry  it  out  into  all  its  consequences.  The  relations  of  the  States  of 
the  Union  to  each  other  are  very  peculiar,  and  give  rise  to  questions 
of  great  delicacy  and  difficulty.  If  the  States,  and  the  citizens  of  States, 
are  to  be  placed  in  the  relations  of  belligerents  and  neutrals,  and  bound 
by  the  laws  of  nations,  then  they  must  have  the  power  of  regulating 
their  duties  and  obligations  by  negotiations  and  treaties,  and  thus  be 
enabled  more  effectually  to  provide  for  the  performance  of  their  relative 
duties,  and  the  security  of  their  respective  rights.  But  the  States  are 
expressly  prohibited  from  entering  into  any  treaty,  alliance  or  confed- 
eration, or,  without  the  consent  of  Congress,  to  enter  into  any  agree- 
ment or  compact  with  another  State,  or  engage  in  war,  unless  actually 
invaded,  or  in  such  imminent  danger  as  will  not  admit  of  delay. 
They  are,  therefore,  in  the  condition  of  States  sovereign  to  some 
purposes,  but  who  have  by  compact  renounced  and  relinquished  their 
sovereign  powers,  in  regard  to  war  and  peace,  and,  of  course,  to  the 
regulation  and  control  of  the  incidents  to  war  and  peace,  except  the 
power  of  taking  warlike  measures,  strictly  and  purely  defensive,  in 
case  of  an  exigency,  which  will  admit  of  no  delay.  In  all  other 
respects,  the  power  of  making  war  and  peace,  of  treaties  and  alli- 
ances, is  vested  absolutely  and  exclusively  in  the  general  government, 
with  their  incidents.  But  as  a  compensation  for  this  surrender,  the 
general  government  of  the  United  States  is  bound  to  protect  each 
State  against  invasion,  and  against  domestic  violence.  The  Constitu- 
tion of  the  United  States  is  to  be  taken  as  a  whole;  and  whilst  it 
restrains  the  States  from  making  war  and  peace,  and  exercising  pow- 
ers incidental  thereto,   it  assumes  that  the  general  government  will 


312  TEERITOKIAL   JUEISDIQTION".  [PART  I. 

do  its  duty,  and  effectually  secure  to  each  State  that  immunity  from 
all  violence,  foreign  and  domestic,  which  was  the  obvious  considera- 
tion for  the  surrender  of  these  great  powers.  It  is  useless  to  specu- 
late upon  the  contingency,  as  to  what  would  be  the  rights  of  the 
States  in  case  the  general  government  should  fail  to  afford  that  pro- 
tection to  States  which  the  Constitution  guarantees  to  them.  Such  a 
state  of  things  is  not  to  be  supposed.  It  would  be  one  of  revolution 
and  anarchy,  in  which  a  regard  to  self-defence  and  public  safety 
would  constitute  an  exigency  that  would  warrant  such  measures  as 
the  necessity  of  the  case  might  require,  under  the  maxim  salus  pojyuli 
suprema  est  lex.  The  necessity,  which  would  create  such  an  exi- 
gency,  must  limit  and  direct  the  means  of  meeting  it. 

But  supposing,  for  the  purpose  of  the  argument,  that  the  relations 
of  the  States  to  each  other  were  those  of  sovereign  States,  in  one  of 
which  an  insurrection  against  the  government  existed;  we  think  the 
instructions  given  in  this  case,  upon  the  facts  stated  in  the  bill  of 
exceptions,  were  correct.  The  exclusive  right  of  every  sovereign 
State  to  its  own  territory,  and  to  the  regulation  and  government  of 
it,  is  absolute  and  inviolable,  and  extends  to  all  persons  within  it. 
Every  person  entering  the  territory  owes  allegiance  to  the  govern- 
ment, temporary  indeed,  but  absolute.  Whilst  he  continues  within 
it,  he  is  bound,  like  any  other  subject,  by  the  laws  of  the  State,  owes 
it  obedience,  and  is  liable  to  the  operation  of  its  criminal  laws ;  and 
as  a  correlative  right,  he  is  regarded  as  a  subject,  for  the  purpose  of 
protection  and  immunity  from  arrest,  and  all  forcible  invasion  of  his 
liberty  or  property,  by  any  other  State,  except  so  far  as  the  exercise 
of  such  right  by  foreign  authority  is  stipulated  for,  by  treaty, 
amongst  sovereign  states,  or,  amongst  the  States  of  this  Union,  by 
the  Constitution  of  the  United  States,  and  the  laws  and  treaties  made 
under  it.  According  to  these  principles,  which  seem  to  us  plain  and 
well  settled,  Olney  and  the  other  persons,  found  at  Crooks's  tavern 
in  Bellingham,  owed  allegiance  to  Massachusetts,  whilst  they  re- 
mained within  the  limits  of  the  State;  they  were  subject  to  its  laws, 
would  have  been  responsible  for  any  violation  of  them,  and,  for  the 
time  being,  were  in  the  peace  of  the  Commonwealth. 

We  do  not  mean  to  be  understood  as  holding  that  soldiers  and 
subordinate  military  officers,  who  are  ordered  by  their  sovereign  to 
enter  the  territory  of  another  State  to  pursue  an  enemy,  and  for  any 
other  purpose,  may  not  rightfully  claim  impunity  from  the  animad- 
version of  the  criminal  laws  of  the  country  invaded.  Such  an  inva- 
sion, however,  must  be  deemed  to  be  made  flagrante  hello,  whether 
war  have  been  declared  or  not,  because  it  is  in  itself  an  act  of  war. 
But  this  could  not  be  justified  by  an  order  of  the  subordinate  military. 


CHAP.  II.]  COMMONWEALTH   V.   BLODGETT.  313 

authorities  of  a  State,  in  the  exercise  of  their  ordinary  functions  in 
the  defence  of  a  State.  Nothing  but  the  sovereign  power  of  the 
State,  by  a  previous  order,  directing  such  invasion,  or  by  a  subse- 
quent ratification,  when  done  in  its  name,  will  warrant  such  invasion, 
and  excuse  the  subordinates  engaged  in  it ;  because  it  emanates  from 
the  sovereign  authority  having  the  power  to  make  war.  The  wrong 
done  by  such  an  invasion  then  becomes  a  question  of  negotiation 
between  sovereigns,  and  the  subordinate  agents  are  entitled  to 
immunity. 

The  court,  in  saying  that  in  their  judgment  the  instruction  to  the 
jury  was  correct,  in  charging  them  that  Ulney,  Ballon,  Whipple  and 
Walker,  upon  crossing  the  lines  of  Massachusetts,  were  in  the  peace 
of  the  Commonwealth,  and  within  the  protection  of  her  laws,  against 
the  pursuit  of  the  authorities  and  troops  of  Ehode  Island,  and  that 
the  defendants  were  criminally  liable  for  capturing  the  said  Olney 
and  others,  have  done  so  on  the  facts  stated,  and  in  connection  with 
the  qualifying  instruction  given  at  the  same  time.  It  was  this: 
That  if  there  existed  a  necessifj/,  for  the  defence  or  protection  of 
the  lives  and  property  of  the  citizens  of  Ehode  Island,  or  for  the 
defence  of  the  State  of  Rhode  Island,  that  the  defendants  should  do 
the  acts  complained  of  in  the  indictment,  or  if  there  was  probable 
cause  to  suppose,  at  the  time,  the  existence  of  such  a  necessity,  and 
the  jury  found  such  necessity  or  probable  cause,  they  were  to  acquit 
them.  And  much  evidence  was  given  on  both  sides  upon  this  ques- 
tion of  fact.  This  instruction  gave  the  defendants  the  full  benefit 
of  any  excuse,  arising  from  the  use  of  force  in  the  necessary  defence 
of  the  State  and  its  citizens,  in  whose  service  they  were  engaged; 
leaving  a  great  latitude  as  to  the  means  necessary  to  such  defence. 
It  is  not  requisite,  we  think,  in  the  present  case,  to  attempt  drawing 
any  exact  line  of  distinction  as  to  the  measures  which  such  necessary 
defence  would  warrant,  nor,  perhaps,  would  it  be  practicable;  because 
it  must  depend  much  on  the  circumstances  of  each  case.  In  the  pres- 
ent case,  it  appears  that  the  arrest  of  Olney  and  others  was  made  at 
midnight,  in  a  dwelling-house  and  common  tavern,  nearly  three  miles 
from  the  State  line,  the  men  not  being  in  arms  or  in  military  array, 
or  in  such  numbers  as  to  be  immediately  formidable;  and  it  is  diffi- 
cult to  perceive  how  such  act  could  be  considered  as  done  in  the 
necessary  defence  of  the  territory  of  Rhode  Island.  The  men  had 
been  in  arms,  and  probably  had  rendered  themselves  amenable  to  the 
laws  of  Rhode  Island;  and  it  might  be  a  prudent  precaution,  on  the 
part  of  that  State,  to  discover,  pursue  and  arrest  them,  as  susjticious 
persons,  of  which  they  had  no  right  to  complain;  and  if  it  could  have 
been  done  without  violating  the  laws,  the  peace,  or  the  rights  of  this 


314  TERRITOEIAL   JURISDICTION.  [PART  I. 

Commonwealth,  it  would  have  been  quite  excusable.  But  the  ques- 
tion was  rightly  submitted  to  the  jury,  as  one  of  strictly  necessary 
defence. 

This  instruction  the  court  refused  to  give,  but  instructed  the  jury, 
that  in  the  case  supposed,  the  State  of  Rhode  Island  had  no  such 
rights  as  above  claimed,  within  the  territory  of  Massachusetts,  to 
capture  her  own  rebel  citizens;  and  that  such  captures  were  unlaw- 
ful, unless  necessary  in  the  defence  of  the  lives  and  property  of  the 
citizens  of  Ehode  Island,  at  the  time;  of  wliicli  necassity,  or  prob- 
able cause,  or  supposed  probable  cause,  the  jur}',  and  not  the  State 
of  Ehode  Island,  was  the  proper  judge;  and  that  the  orders  of  the 
State  of  Rhode  Island  could  not  shield  her  citizens  and  soldiers  from 
being  criminally  responsible  in  the  courts  of  ^Massachusetts,  for  acts 
done  in  tlie  territory  of  ^lassachusetts,  under  and  in  compliance  with 
such  orders,  in  time  of  civil  war  and  domestic  insurrection,  and 
whilst  such  citizens  and  soldiers  were  subject  to  martial  law. 

"We  are  of  opinion,  that  the  court  below  decided  correctly  in  refus- 
ing to  give  the  instruction  prayed  for.  That  instruction  assumes 
matters  both  as  to  the  relations  of  the  States  to  each  other,  and  as  to 
the  authority  under  which  the  acts  proposed  to  be  excused  or  justiiied 
were  done,  and  as  to  the  condition  of  the  persons  arrested,  at  the 
time  and  place  of  arrest. 

As  to  the  relations  in  which  the  States  stood  to  each  other,  which 
we  have  already  partly  considered:  Suppose  that  the  State  of  Massa- 
chusetts was  ultimately  bound  to  render  aid  to  Rhode  Island  against 
domestic  violence;  some  competent  power  must  judge  and  decide 
upon  the  existence  of  the  casus  fa-deris:  and  it  cannot  be  possible 
that  Massachusetts,  and  all  the  other  States  in  the  Union,  are  to  be 
placed  in  a  state  of  war,  by  the  sole  judgment  of  the  acting  govern- 
ment of  the  State  of  Rhode  Island.  It  must  be  authoritatively  deter- 
mined and  made  known,  that  domestic  violence,  and  actual  insurrection 
against  the  government  of  the  State,  exist,  and  that  the  acting  govern- 
ment, resisting  such  violence  and  insurrection,  by  force  of  arms,  is  the 
true  and  legitimate  government  of  the  State,  and  entitled  to  the  aid 
and  assistance  intended  to  be  secured  by  the  Constitution  of  the 
United  States  to  the  respective  States.  If  the  State  of  ^Massachusetts 
retains  her  sovereign  power  to  this  extent,  then  it  is  for  the  govern- 
ment of  Massachusetts,  by  some  authentic  act,  to  declare  or  recognize 
such  state  of  civil  war,  and  such  duty  of  Massachusetts  as  an  alh'; 
or,  if  this  portion  of  the  sovereignty  of  the  State  is  delegated  to  the 
general  government,  then  it  is  further  to  recognize  and  declare  the 
cnsHs  fwderis,  and  by  ordering  out  regular  troops,  and  the  ships  of 
war,  or  by  drafts  of  militia  from  other  States,  or  otherwise,  to  direct 


CHAP.  II.]  COMMONWEALTH    V.    BLODGETT.  315 

the  measures  to  be  pui-sued.  If  it  were  true,  as  claimed  by  the 
defendants,  that  one  State  is  the  sole  and  exclusive  judge  of  the 
necessity  for  waging  war  against  its  rebel  subjects,  and  thereupon  to 
confer  on  their  troops  an  authority  to  make  an  unlimited  use  of  the 
territories  of  all  other  States,  it  would  be  placing  such  States  in 
a  state  of  war,  witiiout  their  own  consent,  or  the  consent  of  the  gen- 
eral government,  to  whom  the  power  of  judging  and  acting,  in  the 
case  supposed,  has  been  confided  by  the  Constitution.  Sucli  a  state 
of  things  would  tend  greatly  to  destroy  the  peace,  and  put  at  hazard 
the  security,  of  the  States  and  their  citizens.  Besides,  such  a  princi- 
ple, if  admitted,  would  leave  neither  to  the  government  of  the  State, 
the  use  of  whose  territory  is  thus  claimed  for  hostile  purposes,  nor 
to  the  government  of  the  United  States,  intrusted  with  that  portion 
of  the  sovereign  power  of  the  States,  the  power  of  deciding  whether 
the  government  of  a  State,  at  war  with  its  citizens,  is  the  true  and 
legitimate  government,  or  a  mere  usurped  authority.  Such  a  claim 
appears  to  us  to  be  wholly  untenable. 

But  further;  the  prayer  for  instruction  assumed  that  the  acts  done 
by  the  defendants,  with  the  armed  party  accompanying  them,  who 
proceeded  to  Bellingham,  entered  the  house  of  Crooks,  and  seized 
and  carried  away  Oluey  and  others  as  rebels  against  the  authority  of 
the  State  of  Ehode  Island,  were  done  under  the  sovereign  authority 
of  the  State,  either  by  a  previous  order,  emanating  from  the  govern- 
ment, or  that  the  acts  done  in  their  name  were  subsequently,  in  due 
form,  ratified,  adopted  and  expressly  sanctioned  by  the  authority  of 
the  State  of  Rhode  Island,  so  as  to  transfer  the  responsibility,  what- 
ever it  was,  from  the  individuals  to  the  State.  But  so  far  from  this, 
the  case  shows  that  they  acted  under  the  authority  of  an  order,  given, 
by  Major  Martin,  to  do  the  specific  duty,  in  conformity  with  a  more 
general  direction  from  the  military  commanding  officer,  directing  the 
officers  and  soldiers  to  scour  the  country,  to  the  distance  of  fifty 
miles,  without  regard  to  State  lines,  in  order  to  secure  the  insurgents 
who  had  fled.  The  specific  order  to  cross  the  lines  of  Massachusetts 
did  not  emanate  from  the  government;  it  was  an  ordinary  military 
operation,  undertaken  by  the  military  officers,  in  pursuance  of  their 
general  duty  to  defend  the  State  against  the  insurgent  forces.  And 
so  far  from  being  specifically  ratified,  sanctioned  and  adopted,  by  the 
State  of  Rhode  Island,  the  Governor,  when  applied  to  for  that  pur- 
pose by  the  Governor  of  ]\Iassachusetts,  declined  so  to  do,  but  repudi- 
ated it,  and  denied  that  it  was  done  by  authority  of  the  State.  And 
the  act,  stated  in  the  bill  of  exceptions,  passed  by  the  Legislature  of 
Rhode  Island,  to  indemnify  these  defendants,  against  certain  ex- 
penses occasioned  by  their  prosecution,  is  far  from  that  express  adop- 


316  TEREITOKIAL   JUEISDICTION.  [PART  I. 

tion  which  will  secure  the  citizen  by  taking  the  responsibility  upon 
tlie  State. 

The  other  matters  assumed  in  the  prayer  in  question  relate  to  the 
particular  situation  of  the  men  at  the  time,  as  being  captured  just 
over  the  lines,  etc.  These  are  not  of  much  importance,  but  do  not 
seem  to  be  warranted  by  the  evidence. 

And  the  court  are  also  of  opinion,  that  the  instruction  actually 
given,  under  this  prayer,  viz.,  that  the  acts  of  the  defendants  were 
unlawful,  unless  done  in  the  necessary  defence  of  the  lives  and  prop- 
erty of  the  citizens  of  Rhode  Island,  or  in  the  necessary  defence  of 
the  State,  was  sufficiently  favorable  to  the  defendants. 

The  last  prayer  for  instruction  is  thus  stated :  The  counsel  for  the 
defendants  further  prayed  the  court  to  instruct  the  jury,  that  if  they 
found  that  the  said  Blodgett  and  Hendrick  were  citizens  of  Rhode 
Island,  actually  serving  as  soldiers  in  the  ranks,  with  the  troops  of 
Rhode  Island,  under  regular  military  command,  in  time  of  civil  war 
and  domestic  insurrection  in  said  State,  and  under  martial  law,  and 
were  duly  ordered  by  their  lawful  military  superiors,  acting  under 
and  by  authority  of  the  State  of  Rhode  Island,  to  cross  the  lines  and 
arrest,  within  the  territory  of  Massachusetts,  the  said  Olney,  Ballou, 
Whipple  and  Walker,  rebel  citizens  of  Rhode  Island,  recently  fled  to 
Massachusetts,  for  refuge  merely,  from  the  troops  of  Rhode  Island, 
they  were  not  personally  liable,  in  the  criminal  courts  of  Massachu- 
setts, for  executing  such  orders  without  excess  or  unnecessary  vio- 
lence; but  that  the  State  of  Rhode  Island  was  alone  responsible  to 
the  State  of  Massachusetts  for  the  violation  of  her  territorial  rights. 
This  instruction  the  court  refused  to  give,  but  did  instruct  the  jury 
that  the  defendants  were  personally  liable,  in  the  criminal  courts  of 
this  Commonwealth,  for  the  acts  done  by  them  as  aforesaid,  under 
the  orders  of  the  State  of  Rhode  Island,  notwithstanding  such  orders 
given,  and  only  by  them  faithfully  executed. 

Upon  this  ground,  the  main  argument,  in  justification  or  excuse  of 
the  defendants,  has  been  placed.  We  are  to  presume  that  the  in- 
structions and  directions  asked  for  were  so  asked  for  in  reference  to 
the  case  stated  in  the  bill  of  exceptions,  and  not  as  mere  abstract  propo- 
sitions; and,  as  such,  their  correctness  in  point  of  law,  and  their 
adaptation  to  the  case  on  trial,  are  to  be  considered.  It  was  then  a 
request  to  the  judge  to  instruct  the  jury  that  if  the  ordinary  mili- 
tary officers  of  a  State,  in  the  exercise  of  the  military  powers  vested 
in  them  foi*  the  defence  and  protection  of  the  State  against  an  insur- 
rection, after  martial  law  declared  by  the  Legislature,  should  order 
subordinate  officers  and  soldiers  to  enter  a  neutral  territory,  the  terri- 
tory of  another  State,  to  arrest  and  secure  the  persons  of  rebel  citi- 


CHAP.  11.]  COMMONWEALTH  V.   BLODGETT.  317 

zens,  recently  in  arms,  the  persons  thus  ordered,  being  bound  to  obey, 
under  the  penalties  of  disobedience  of  a  military  command  which 
they  have  no  means  of  resisting,  would  not  subject  themselves  to  the 
animadversion  of  the  criminal  laws  of  the  State  whose  territory  is 
thus  violated.  This  proposition,  we  think,  cannot  be  maintained 
upon  any  well-recognized  principle  of  public  law.  It  would  be  an 
authority  to  every  military  officer,  superior  or  subordinate,  by  means 
of  orders  to  those  under  him,  in  all  cases  where  military  forces  are 
raised  and  organized,  to  extend  hostilities  indefinitely  into  the  terri- 
tories of  neutral  and  independent  States,  to  the  imminent  danger  of 
the  lives,  property  and  possessions  of  the  subjects  of  such  neutral 
State;  and  the  only  remedy  for  the  injured  party  would  be  by  way 
of  remonstrance  to  the  government  of  the  party  doing  such  wrong. 
But,  surely,  this  is  not  one  of  the  ordinary  or  incidental  powers  con- 
ferred upon  military  officers  by  their  own  government.  They  are 
indeed  to  defend  the  territory  and  the  just  rights  of  their  States  by 
warlike  measures;  but  these  must  be  taken  in  reference  to  the  just 
rights  and  limited  powers  of  the  State  itself,  under  whose  authority 
they  act,  and  they  cannot,  by  force  of  such  authority,  commit  hostile 
acts  against  independent  States,  with  whom  their  own  State  is  at 
peace.  If  such  military  entry  into  the  territory  of  a  neutral  State  is 
supposed  necessary,  such  act  is  a  high  prerogative  of  sovereignty, 
and  the  necessity  of  it  must  be  judged  of,  and  the  warrant  for  it  must 
be  given  by  the  express  command  or  direction  of  the  sovereign 
authority.  Any  other  principle  would  make  the  peace  of  any  State 
depend  upon  the  judgment  and  discretion,  or  even  the  rash  and  ill- 
judged  act,  of  every  military  officer,  in  time  of  war. 

It  has  been  argued  upon  the  ground  that  men  ought  not  to  be  held 
responsible  for  acts  done  in  obedience  to  orders  which  they  are  com- 
pelled to  obey,  under  severe  military  discipline.  But  this  is  not  the 
true  principle;  and  it  would  be  dangerous  in  the  extreme  to  carry  it 
out  into  its  consequences.  The  more  general  and  the  sounder  rule  is, 
that  he  who  does  acts  injurious  to  the  rights  of  others  can  excuse 
himself,  as  against  the  party  injured,  by  pleading  the  lawfvl  com- 
mands only  of  a  superior,  whom  he  is  bound  to  obey.  A  man  may  be 
often  so  placed  in  civil  life,  and  more  especially  in  military  life,  as 
to  be  obliged  to  execute  unlawful  commands,  on  pain  of  severe  penal 
consequences.  As  against  "the  party  giving  such  command,  he  will 
be  justified;  in  for o  conscientke  he  may  be  excusable;  but  towards  the 
party  injured,  the  act  is  done  at  his  own  peril,  and  he  must  stand 
responsible. 

Had  the  government  of  Rhode  Island  ordered  the  expedition  into 
Massachusetts,  it  would  have  presented  the  question  argued  in  the 


318  .    TERRITOEIAL   JURISDICTION.  [PART  I. 

present  case,  viz.,  whether  the  men  would  have  been  protected  by 
such  order,  and  the  State  alone  be  responsible.  War  may  be  made 
without  being  declared;  and  when  it  is  so  made  and  recognized  by 
the  governments  of  the  respective  parties,  then  the  rights  belonging 
to  belligerents,  and  incident  to  war,  attach  to  the  States  and  their 
respective  citizens  and  subjects,  in  arms  or  otherwise.  The  argument 
in  excuse  of  the  defendants,  to  be  effectual,  must  be  put  upon  the 
ground,  and  go  to  the  extent,  that  in  the  actual  state  of  things,  there 
was  war  de  facto,  between  Rhode  Island  and  Massachusetts,  But 
this  is  too  extravagant  a  view  to  be  taken  by  any  aspect  in  which, 
upon  the  facts,  the  case  can  be  placed.  These  facts  show  that  the 
proceeding  of  Blodgett  and  others,  in  passing  over  the  lines  of  Massa- 
chusetts, and  doing  the  acts  which  are  the  subject  of  this  prosecution, 
though  ordered  by  Major  Martin,  acting  under  the  general  authority 
of  Major-General  McNeill,  was  not  the  act  of  the  State  of  Rhode 
Island,  either  by  previous  special  authority,  or  subsequent  ratification 
or  adoption.  The  authority  of  the  commanding  and  other  military 
officers  \s  prima  facie  limited  to  the  defence  of  the  territory  and  terri- 
torial rights  of  the  State  appointing  them,  and  must  stand  so  limited, 
unless  it  is  shown  that  an  authority  was  specially  vested  in  them  by 
the  State,  to  enter  the  territory  of  another  State.  In  the  present 
case,  if  the  act  itself  was  equivocal,  it  was  put  beyond  doubt,  by  the 
answer  and  denial  of  the  Governor  of  Rhode  Island,  that  the  act  was 
not  authorized  or  adopted  as  the  act  of  the  State.  The  acts  of  the 
defendants  then,  being  plainly  a  violation  of  the  rights  and  laws  of 
Massachusetts,  and  of  the  legal  rights  of  persons  lawfully  within  its 
protection,  and  being  denied  and  repudiated  as  an  act  of  the  State  of 
Rhode  Island,  it  follows,  as  a  necessary  legal  consequence,  that  it 
was  a  lawless  and  unjustifiable  act  of  violence  on  the  part  of  the 
defendants,  subjecting  them,  and  all  who  assisted  them,  to  be  pun- 
ished for  such  violation,   by  our  laws. 

If  these  States  had  stood  in  the  relation,  in  all  respects,  of  foreign 
states  (which  is  the  supposition  in  the  argument,  and  the  one,  per- 
haps, most  favorable  to  the  defendants),  we  do  not  see  how  they  could 
make  out  their  justification,  since  the  executive  of  Rhode  Island  has 
repudiated  the  act  as  an  act  of  the  State. 

Whether,  if  the  measure  of  sending  a  military  force  into  Massachu- 
setts, being  in  its  nature  an  act  of  war,  would  have  justified,  and  ren- 
dered the  persons  sent  free  from  punishment,  the  facts  of  this  case  do 
not  require  us  to  consider.  It  would  depend  upon  questions  arising 
out  of  the  peculiar  relations  in  which  the  States  stand  to  each  other 
and  to  the  general  government.  The  Constitution  of  the  United 
States  still  recognizes  that  qualified  sovereignty  of  a  State,  so  far  as 


CHAP.  II.]  COMMONWEALTH   V.    BLODGETT.  319 

to  raise  military  forces  for  their  own  protection  and  defence,  against 
both  foreign  invasion  and  domestic  insurrection.  The  lirst  security 
of  a  State  against  violence  is  to  be  sought  in  the  duty  imposed  on  the 
United  States  Government,  to  take  order  in  that  respect.  If,  for  any 
cause  and  by  any  means,  imperious  necessity  or  otherwise,  tliat  fails, 
and  the  State  in  which  insurrection  arises  is  left  to  take  care  of  its 
own  defence,  it  may  be  a  grave  question,  whether  such  State  would 
not  be  remitted  to  its  natural  and  original  rights  of  sovereignty,  with 
its  recognized  incidents,  to  the  extent  necessary  to  meet  that  exigency, 
and  for  that  purpose  to  issue  the  necessary  declarations,  enter  into 
stipulations  with  other  States,  and  the  like.  But  even  in  that  case, 
soldiers  and  others,  acting  in  the  defence  of  such  a  State,  could  have 
no  higher  rights,  no  higher  claim  of  impunity  for  acts  done  to  the 
injury  of  others,  than  the  citizens  and  subjects  of  a  sovereign  and 
independent  State,  acting  under  like  circumstances. 

On  the  whole,  the  court  are  of  opinion  that  the  instructions  were 
correct  and  carefully  considered,  as  well  as  the  refusal  of  instructions 
prayed  for,  and  therefore  that  the  exceptions  must  be  overruled.^ 

1  The  case  of  the  Caroline  (the  vessel  referred  to  in  notice  of  McLeod's  case  as 
given  in  Underhill  \.  Hernandez,  ante,  67)  is  the  one  generally  referred  to  for  tlie  doctrine 
that  the  violation  of  foreign  territory  may  be  justified  on  the  ground  of  the  necessity  of 
self-defence  (1  Wharton's  Digest,  §  50  c).  Perhaps  the  most  satisfactory  as  well  as 
final  judicial  account  of  the  McLeod  and  Caroline  episodes  is  to  be  found  in  the  Deci- 
sions of  the  Commission  of  Claims  under  Convention  between  U.  S.  and  Gt.  Br., 
Feb.  8,  1853,  at  pp.  314-327.  The  statements  of  the  various  transactions  attending  the 
different  phases  of  the  cases  are  here  quoted  from  p.  314  of  the  report : 

"  Where  a  citizen  of  Canada  was  arrested  in  the  State  of  New  York,  for  a  criminal 
offence  against  the  laws  of  the  State,  arising  from  his  being  engaged  in  the  destruction 
of  the  steamer  Caroline,  in  New  York,  with  a  party  from  Canada,  during  an  insurrec- 
tion in  that  province,  and  Great  Britain  demanded  his  release  on  the  ground  that  the 
acts  complained  of  were  done  by  the  orders  of  that  government,  and  that  the  nation 
was  responsible  and  not  the  individual;  and  where  the  difiiculties  arising  from  these 
causes  were  afterwards  adjusted  between  the  two  governments,  held  that  such  adjust- 
ment barred  all  claims  of  citizens  of  either  country  against  the  other  for  individual 
damage  sustained,  and  that  such  cases  were  not  within  the  provisions  for  the  settle- 
ment 'of  outstanding  claims,'  under  the  convention  of  February  8,  1853. 

"  Where  a  citizen  of  another  government  was  arrested  in  this  country  for  a  criminal 
offence  and  claimed  his  discliarge  on  the  ground  that  the  acts  complained  of  were  done 
under  the  authority  of  his  government,  it  does  not  necessarily  entitle  him  to  a  release. 
Time  must  be  had  for  the  action  of  the  proper  tribunals  on  such  plea,  and  the  ultimate 
decision  of  a  court  in  the  last  resort,  where  the  same  becomes  necessary. 

"  Neither  does  any  claim  for  damage  arise  where  the  means  provided  by  law  for  the 
adjustment  of  such  questions  are  less  speedy  than  would  be  desirable,  and  may  require 
amendment,  or  error  has  arisen,  in  courts  of  subordinate  jurisdiction,  from  which  appeal 
might  have  been  taken  or  correction  had. 

"  Alexander  McLeod,  a  British  subject  resident  in  Canada,  was  arrested  in  Lewis-, 
town,  in  the  State  of  New  Y'ork,  in  November,  1840,  on  a  charge  of  being  concerned 


320 


TERRITORIAL   JURISDICTION.  [PART  I. 


Section  16.  —  Injury  to  Foreigners  by  IVIob  Violence. 


THE  CITY  OF  NEW  ORLEANS  v.  ABBAGNATO. 

United  States  Circuit  Court  of  Appeals,   Fifth  Circuit,  1894. 

(62  Federal  Reporter,  240.) 

Pardee,  Circuit  Judge.  The  treaty  between  the  kingdom  of  Italy 
and  the  United  States  proclaimed  Nov.   23,  1871,  guarantees  to  the 

in  the  seizure  and  destruction  of  the  steamer   Caroline,  attended  with  loss  of  life,  in 
the  State  of  New  York,  on  the  29th  of  December,  1837. 

"  During  the  pendency  of  the  prosecution,  Great  Britain  notified  the  government  of 
the  United  States  that  the  seizure  of  the  Caroline  was  made  under  the  authority  of 
Great  Britain,  and  claimed  the  discharge  of  McLeod  on  that  ground.  He  was  not  dis- 
charged, but  was  tried  and  acquitted,  and  now  brings  his  claim  before  this  commission 
for  damages  and  expenses  arising  from  his  detention  and  trial." 

Further  instances  are  :  the  seizure  of  Saint  Marks  (1  Wliarton's  Digest,  224)  hold- 
ing that  necessity  justifies  an  invasion  of  foreign  territory  so  as  to  subdue  an  expected 
assailant,  and  the  seizure  of  Amelia  Island,  in  1817  (1  Wliarton's  Digest,  §  50  o).  In 
the  technical  language  of  private  as  distinguished  from  public  law,  these  transactions 
amounted  to  the  abatement  of  a  nuisance,  tiie  right  to  do  wliich  e.xists  in  tlie  aggrieved 
party.  Its  exercise,  however,  is  decidedly  hazardous  (3  Black.  Com.  5  and  Pollock's 
Torts,  8th  ed.  p.  404). 

These  instances  were  on  land :  the  case  of  the  Virginius  was  on  the  high  seas. 

The  Virijinius  was  registered  in  the  United  States  and  carried  the  American  flag; 
but,  as  it  eventually  appeared,  she  was  really  the  property  of  certain  Cuban  insurgents, 
and  was  employed  in  aid  of  tiie  rebellion  in  Cuba.  On  the  9tli  of  Jul}',  1873,  she 
arrived  at  Kingston,  Jamaica,  and  on  the  23d  of  October  she  cleared  ostensibly  for 
Limon  Bay  in  Costa  Rica,  but  really  for  the  coast  of  Cuba.  Being  chased  by  a  Span- 
ish warship,  she  put  into  Port-au-Prince,  Hayti.  Thence  slie  proceeded  again  to  tlie 
coast  of  Cuba,  and  was  again  chased  by  a  Spanish  war  vessel,  tlie  Tornado,  and  was 
captured  ten  or  fifteen  miles  from  the  coast  of  Jamaica,  on  the  31st  of  October.  Slie 
was  taken  to  Santiago  de  Cuba,  wliere  a  court  was  assembled  for  tlie  trial  of  the  per- 
sons found  on  board  —  155  in  number.  Of  these  four  were  tried  on  the  3d  of  Novem- 
ber, and  shot  on  the  4th,  thirty-seven  on  the  7tli,  and  si.xteen  on  the  8th.  Among  those 
executed  were  nine  Americans  and  sixteen  British  subjects. 

The  government  of  the  United  States,  supposing  that  its  rights  on  the  high  seas 
had  been  violated,  demanded  reparation.  And  by  an  agreement  of  the  29tli  of  Novem- 
ber, Spain  stipulated  to  restore  the  Virginius  and  the  survivors  of  the  passengers  and 
crew,  and  to  salute  tlie  flag  of  tlie  United  States  on  the  2-jth  of  December  following, 
unless  Spain  should  in  the  mean  time  prove  that  the  vessel  was  not  entitled  to  carry 
said  flag.  The  matter  was  submitted  to  the  Attorney-General  of  the  United  States, 
who,  after  careful  examination,  reported  on  the  12th  of  December  that  the  registry 
of  the  Vlrrjlnlus  was  fraudulent,  and  that  slie  had  therefore  no  right  to  carry  the 
American  flag.    But  he  added,  "  I  am  also  of  opinion  that  she  was  as  much  exempt 

I,  Hi. 


CHAP.  II.]        CITY   OF    NEW   ORLEANS    V.    ABBAGNATO.  8-21 

citizens  of  either  nation  in  the  territory  of  tlie  other  "the  most  con- 
stant protection  and  security  for  their  persons  and  property,"  and 
further  provides  that  "they  shall  enjo}^  in  this  respect  the  same  rights 
and  privileges  as  are  or  shall  be  granted  to  the  natives  on  their  sub- 
mitting  themselves    to   the   conditions    imposed    upon   the   natives." 

from  interference  on  the  liigh  seas  by  any  otlier  power,  on  tliat  ground,  as  though  slie 
had  been  lawfully  registered.  Spain,  no  doubt,  has  a  right  to  capture  a  vessel,  with 
an  American  register,  and  carrying  the  American  flag,  found  in  her  own  waters  assist- 
ing, or  endeavoring  to  assist,  the  insurrection  in  Cuba,  but  she  has  no  right  to  capture 
such  a  vessel  on  the  high  seas  upon  an  apprehension  tiiat,  in  violation  of  the  neutrality 
or  navigation  laws  of  the  United  States,  she  was  on  her  way  to  assist  said  rebellion. 
Spain  may  defend  her  territory  and  people  from  the  hostile  attacks  of  wliat  is,  or 
appears  to  be,  an  American  vessel;  but  she  has  no  jurisdiction  whatever  over  the  ques- 
tion as  to  whether  or  not  such  vessel  is  on  the  high  seas  in  violation  of  anj'  law  of  the 
United  States."  Spain  having  proved  her  point,  the  salute  to  the  flag  was  dispensed 
■with.  The  vessel  was  delivered  to  the  United  States  authorities  on  the  16th  of  De- 
cember, 1873 ;  but  on  her  way  north,  sank,  off  Cape  Fear,  on  tlie  26th  of  that  month. 

Both  the  United  States  and  England  demanded  reparation  for  tlie  persons  of  their 
respective  nationalities  wlio  had  been  executed  by  the  captors  of  the  Virginius  ;  and 
this  Spain  eventually  agreed  to  make.  Even  assuming  that  the  vessel  was  lawfully 
seized,  it  was  contended  that  tiiere  could  be  no  justification  of  the  summary  execution 
of  foreigners  by  order  of  a  drum-head  court-martial. 

The  position  of  the  Attorney-General,  that  Spain  had  no  right  to  capture  sucli  a 
vessel  on  the  high  seas,  etc..  has  called  forth  much  adverse  criticism.  Both  Woolsev 
and  Dana  justified  the  capture  at  the  time.  "  Tlie  register  of  a  foreign  nation,"  said 
Dana,  "  is  not,  and  by  the  law  of  nations  is  not  recognized  as  being,  a  national  voucher 
and  guaranty  of  national  character  to  all  the  world,  and  nations  having  cause  to  arrest 
a  vessel,  would  go  behind  such  a  document  to  ascertain  the  jurisdictional  fact  which 
gives  character  to  the  document,  and  not  the  document  to  the  fact."  It  was  the  duty 
of  the  Spanish  captain,  says  Woolsev,  to  defend  the  coasts  of  Cuba  against  a  vessel 
which  was  known  to  be  under  the  control  of  the  insurgents,  for  which  he  had  been  on 
the  lookout,  and  against  which  tlie  only  effectual  security  was  capture  on  the  high 
seas.     Woolsey's  International  Law,  6th  ed.,  pp.  368,  369. 

In  a  pamphlet  on  the  "  Case  of  the  Virginius,"  Mr.  George  T.  Curtis  took  similar 
ground.  "  We  rest  the  seizure  of  this  vessel,"  he  says,  "on  the  great  right  of  self- 
defence,  whicli,  springing  from  the  law  of  nature,  is  as  thoroughly  incorporated  into 
the  law  of  nations  as  any  right  can  be.  No  state  of  belligerency  is  needful  to  bring 
the  right  of  self-defence  into  operation.  It  existed  at  all  times  —  in  peace  as  well 
as  in  war.  The  only  questions  that  can  arise  about  it  relate  to  the  modes  and  places 
of  its  exercise." 

See,  also,  on  the  question  of  self-defence,  Great  Britain's  seizure  of  Danisli  Fleet 
ia  1807,  Hall's  Int.  Law,  285. 

The  right  to  visit  and  search  foreign  merchant  vessels  upon  the  high  seas  does  not 
exist  in  time  of  peace,  other  than  as  the  result  of  treaty  stipulation.  It  is  essentially 
a  war  power  and  its  exercise  is  riglitly  incident  thereto,  infra,  §  47. 

Unrecognized  insurgents  have  been  and  are  by  a  rigid  adherence  to  the  traditional 
law  of  nations  held  and  punished  as  political  pirates — subject  to  universal  capture, 
and  the  right  of  visit  and  search  is  necessarily  included,  indeed  it  is  preliminary  to 
seizure.  In  this  case,  therefore,  the  Vi>-ginins  was  rightly  captured  by  the  Spanish 
authorities,  provided  it  was,  and  such  was  the  fact,  in  the  employ  of  the  Cuban  uisur- 

21 


322  TERRITORIAL  JURISDICTION.  [PART  I. 

Treaty  of  1871,  Art.  3  (17  Stat.  845).  This  treaty  applies  to  this  case 
only  so  far  as  to  require  that  the  rights  of  the  plaintiff  shall  be  ad- 
judicated and  determined  exactly  the  same  as  if  she  were,  and  her 
deceased  son  had  been,   a  native  citizen  of  the   United  States. 

The  Constitution  of  the  State  of  Louisiana  provides  as  follows  : 

"The  citizens  of  the  City  of  New  Orleans  or  any  political  corpora- 
tion which  may  be  created  within  its  liuiits  shall  have  the  right  of 
appointing  the  several  public  officers  necessary  for  the  administration 
of  the  police  of  said  cit}',  and  pursuant  to  the  mode  of  election  which 
shall  be  provided  by  the  General  Assembly.'"    Const.  La.  1879,  Art.  253, 

"  The  maintenance  and  support  of  persons  confined  in  the  parish  of 
Orleans  upon  charges  or  conviction  for  criminal  offences  shall  be  under 
the  control  of  the  City  of  Xew  Orleans."     Id.  Art.  147. 

The  charter  of  the  City  of  New  Orleans  — 
"Creates  all  the  inhabitants  of  the  parish  of  Orleans,  as  now  bounded 
\-)y     *     *     *^     j^s  a  bod}'  corporate,  and  establishes  them  as  a  political 
corporation  by  the  name  of  the  '  City  of  Xew  Orleans,'  with  the  follow- 
ing powers,  and  no  more  :  It  shall  have  a  seal  and  may  sue  and  be  sued. 

*  *  *  (Section  1.)  The  council  shall  have  power,  and  it  shall  be 
their  duty,  to  pass  such  ordinances,  and  to  see  to  their  faithful  execu- 
tion, as  may  be  necessary  and  proper  to  preserve  the  peace  and  good 
order  of  the  city ;    *     *     *   to  organize  and  provide  an  efficient  police. 

*  *  *  (Section  7.)  The  council  shall  also  have  power  *  *  *  to 
establish  jails,  houses  of  refuge  and  reformation  and  correction,  and 
make  regulations  for  their  government,  and  to  exercise  a  general  police 
power  in  the  City  of  Xew  Orleans.  (Section  8.)  The  Mayor  shall  keep 
his  office  at  the  city  hall  ^  *  *  *  shall  see  that  the  laws  and  ordi- 
nances within  the  limits  of  the  City  of  Xew  Orleans  be  properly  exe- 
cuted;    *     *     *    shall  be  ex-officio  justice  and  conservator  of  the  peace, 

*  *     *     (Section  19.)""     Acts  1882,  Xo.  20,  p,  14, 

The  act  of  the  Legislature  of  Louisiana  (passed  in  1888)  creating  the 
police  board  of  the  City  of  Xew  Orleans  preserves  to  the  Mayor  of  the 
City  of  Xew  Orleans  the  power,  as  the  commander  in  chief  of  the  police 
.force,  to  issue  such  orders  as  may  be  necessary  and  proper  for  the  pres- 
ervation of  the  peace  in  the  City  of  Xew  Orleans,  and  in  said  act  it 
was  declared  that: 

"  It  is  hereby  made  the  duty  of  the  police  force  at  all  times  of  the 

gents.  Tlie  justification  is  tlierefore  twofold  :  piracy  and  self-defence,  which  latter, 
if  it  exists  at  all,  exists  as  well  on  sea  as  on  land. 

See:  The  Xereide,  1815,  9  Cr.  .388,  427-428;  The  Marianna  Flora,  1820,  11  Wheat. 
1 ;   U.  S.  V.  Ambrose  Light,  1885,  25  Fed.  408,  infra. 

No  defence  or  justification  is  offered  for  the  summary  execution  of  tlie  inmates  of 
the  Virginius ;  tliat  is  a  matter  within  the  peculiar  province  of  the  Spanish  publicist. 
—  Ed. 


CHAP,  ir.]        CITY   OF   NEW   ORLEANS   V.    ABBAGNATO.  323 

day  and  night,  and  the  members  of  such  force  are  thereunto  empowered, 
to  especially  preserve  the  public  peace,  to  prevent  crimes,  detect  and 
arrest  offenders,  suppress  riots,  mobs  and  insurrections,  disperse  unlaw- 
ful or  dangerous  assemblages  which  obstruct  the  free  passage  of  public 
streets,  sidewalks,  squares  and  places,  protect  the  rights  of  persons  and 
property,"  &c.     Acts  1888,  No.  63,  p.  64. 

The  city  of  New  Orleans,  by  her  pleadings,  admits  the  gross  negli- 
gence charged  in  the  petition  in  the  performance  of  the  duties  devolving 
upon  the  municipality  under  the  Constitution  and  laws  of  the  State 
above  referred  to,  whereby  Abbagnato  lost  his  life  at  the  hands  of  a 
mob  while  in  the  custody  of  the  law;  and  the  question  presented  in 
this  case  is  whether,  on  such  admission  of  facts,  the  cit\-  can  be  held 
liable  in  damages.  It  is  well  settled  that  at  common  law  no  civil 
action  lies  for  injury  to  a  person  which  results  in  his  death.  Insici'- 
ance  Co.  v.  Brahe,  95  U.  S.  754-756;  Dennick  v.  Railroad  Co.  103  U.  S. 
11,  21 ;  The  Harrishurg,  119  U.  S.  199-214,  7  Sup.  Ct.  140.  The  rule 
is  the  same  under  the  civil  law,  according  to  the  decisions  of  the  Lou- 
isiana Supreme  Court.  Hubgh  v.  Railroad  Co.,  6  La.  Ann.  495;  He'r- 
mann  v.  Railroad  Co.,  11  La.  Ann.  5.  In  the  absence  of  a  statute 
giving  a  remedy,  public  or  municipal  corporations  are  under  no  liability 
to  pay  for  the  property  of  individuals  destroyed  by  mobs  or  riotous 
assemblages.     Add.  Torts,  1305 ;  Dill.  jMun.  Corp.  §  959. 

In  the  case  of  State  v.  Mayor,  etc.,  of  New  Orleans,  109  U.  S.  285,  3 
Sup.  Ct.  211,  the  Supreme  Court  of  the  L^'nited  States  held  tliat  the 
right  to  demand  reimbursement  from  a  municipal  corporation  for 
damages  caused  by  a  mob  is  not  founded  on  contract.  It  is  a  statutory 
right,  and  may  be  given  or  taken  away  at  pleasure.  In  the  same  case, 
j\[r.  Justice  Bradley,  concurring  said: 

"I  concur  in  the  judgment  of  this  case,  on  the  special  ground  that 
remedies  against  municipal  bodies  for  damages  caused  by  mobs  or 
other  violators  of  law,  unconnected  with  the  municipal  government, 
are  purely  matters  of  legislative  policy,  depending  on  positive  law, 
which  may  at  any  time  be  repealed  or  modified,  either  before  or  after 
the  damage  has  occurred,  and  the  repeal  of  which  causes  the  remedy 
to  cease.  In  giving  or  withholding  remedies  of  this  kind,  it  is  simply 
a  question  whether  the  public  shall  or  shall  not  indemnify  those  who 
sustain  losses  from  the  unlawful  acts  or  combinations  of  individuals; 
and  whether  it  shall  or  shall  not  do  so  is  a  matter  of  legislative  discre- 
tion, just  as  it  is  whether  the  public  shall  or  shall  not  indemnify  those 
who  suffer  losses  at  the  hands  of  a  public  eneni}",  or  from  intestine 
commotions  or  rebellion." 

If  this  be  the  rule  with  regard  to  the  liability  of  municipal  corpora- 
tions for  damages  to  property  committed  by  mobs  or  riotous  assem- 


324  TERRITORIAL  JURISDICTION.  [PART  I. 

blages,  a  fortiori  it  must  be  the  rule  with  regard  to  the  liability  of 
municipal  corporations  for  damages  resulting  in  the  loss  of  life  from 
the  acts  of  mobs  or  riotous  assemblages.  The  reason  of  the  rule  is 
obvious.  Actions  to  recover  from  municipal  corporations  damages 
resulting  from  the  acts  of  mobs  and  riotous  assemblages  are  actions  to 
hold  such  corporations  liable  in  damages  for  a  failure  to  preserve  the 
public  peace.  The  preservation  of  the  public  peace  primarily  devolves 
upon  the  sovereign.  Under  our  system  of  government  the  State  is 
that  sovereign.  U.  S.  v.  Criiikshank,  92  U.  S.  542-553;  Western  Col- 
lege V.  City  of  Cleveland,  12  Ohio  St.  377.  When,  by  the  action  of  the 
State,  a  municipal  corporation  is  charged  with  the  preservation  of  the 
peace,  and  empowered  to  appoint  police  boards  and  other  agencies  to 
that  end,  the  corporation  ^^j-o  tanto  is  charged  with  governmental 
functions  in  the  public  interest  and  for  public  purposes,  and  is  entitled 
to  the  same  immunity  as  the  sovereign  granting  the  power  for  negli- 
gence in  preserving  the  public  peace,  unless  such  liability  is  expressly 
declared  by  the  sovereign.  This  proposition  is  so  well  recognized  that 
not  a  well-considered,  adjudicated  case  can  be  found  in  the  books  where, 
in  the  absence  of  an  express  statute,  any  municipality  has  been  held 
liable  for  the  neglect  of  its  officers  to  preserve  the  peace.  In  the  case 
of  Westerji  College  v.  City  of  Cleveland,  siqyra,  it  was  said : 

''It  is  the  duty  of  the  State  government  to  secure  to  the  citizens  of 
the  State  the  peaceful  enjoyment  of  their  property  and  its  protection 
from  wrongful  and  violent  acts.  For  the  proper  discharge  of  this 
duty,  power  is  delegated  in  diffei-ent  modes.  One  of  these  is  the 
establishment  of  municipal  corporations.  Powers  and  privileges  are 
also  conferred  upon  municipal  corporations  to  be  exercised  for  the 
benefit  of  the  individuals  of  whom  such  corporations  are  composed, 
and,  in  connection  with  these  powers  and  privileges,  duties  are  some- 
times specifically  imposed.  It  is  obvious  that  there  is  a  distinction 
between  those  powers  delegated  to  municipal  corporations  to  preserve 
the  peace  and  protect  persons  and  property  when  they  are  to  be  exer- 
cised by  legislation  or  the  appointment  of  proper  officers,  and  those 
powers  and  privileges  which  are  to  be  exercised  for  the  improvement 
of  the  property  comprised  within  the  limits  of  the  corporation  and  its 
adaptation  for  the  purposes  of  residence  and  business.  As  to  the  first, 
the  municipal  corporation  represents  the  State ;  as  to  the  second,  the 
municipal  corporation  represents  the  pecuniary  and  proprietary  interest 
of  the  individuals.  As  to  the  first,  responsibility  for  acts  done  or 
omitted  is  governed  by  the  same  rule  of  responsibility  which  applies 
to  like  delegations  of  power ;  as  to  the  second,  the  rules  which  govern 
the  responsibility  of  individuals  are  properly  applicable." 

The  exemption  of  municipalities  from  liability  to  suits  for  damages 


CHAP.  II.]        CITY   OF   NEW    ORLEANS   V.    ABBAGNATO.  325 

for  the  negligence  of  ofScers  and  agents  in  the  execution  of  the  gov- 
ernmental functions  granted  by  the  State,  in  the  public  interest,  and  in 
the  absence  of  statutory  liability,  is  recognized  in  Louisiana,  as  shown 
by  the  decisions  of  the  Supreme  Court  of  the  State  in  Egerton  v.  Third 
Mimic ipalitt/,  1  La.  Ann.  437  ;  Stewart  v.  Citi/  of  New  Orleans,  9  La. 
Ann.  461 ;  Lewis  v.  New  Orleans,  12  La.  Ann.  190 ;  Bennett  v.  New 
Orleans,  14  La.  Ann.  120 ;  Howe  v.  New  Orleans,  12  La.  Ann.  482  ;  New 
Orleans,  etc.,  R.  Co.  v.  New  Orleans,  26  La.  Ann.  478,  —  although 
Johnson  v.  ]\hinicipality  No.  1,  5  La.  Ann.  100,  Clague  v.  Neio  Orleans, 
13  La.  Ann.  275,  and  Chase  v.  Mayor,  9.  La.  343,  are  apparently  to  the 
contrary.  The  Louisiana  cases,  as  well  as  those  of  other  States,  are 
very  ably  reviewed,  and  the  whole  matter  discussed,  in  a  well-considered 
opinion  of  the  learned  judge  of  the  eastern  district  of  Louisiana  in  the 
case  of  Gianfortone  v.  City  of  New  Orleans  (recently  decided),  61  Fed. 
64.  It  follows,  therefore,  that  in  order  to  recover  damages  against  the 
city  of  New  Orleans  for  the  taking  of  human  life  by  a  mob  in  said  cit}', 
no  matter  what  the  negligence  of  the  city  officials  may  have  been,  there 
must  be  a  statute  of  the  State  of  Louisiana  expressly  or  by  necessary 
implication  giving  a  remedy  in  such  cases. 

Section  2453  of  the  Revised  Statutes  of  Louisiana  reads  as  fol- 
lows : 

"The  different  municipal  corporations  in  this  State  shall  be  liable 
for  the  damages  done  to  property  by  mobs  or  riotous  assemblages  in 
their  respective  limits." 

And  Article  2315,  Rev.  Civ.  Code,  as  last  amended,  reads  as  fol- 
lows : 

"Every  act  whatever  of  man  that  causes  damage  to  another  obliges 
him  by  whose  fault  it  happened  to  repair  it.  The  right  of  tliis  action 
shall  survive  in  case  of  death  in  favor  of  the  minor  children  and  widow 
of  the  deceased  or  either  of  them,  and  in  default  of  these  in  favor  of 
the  surviving  father  or  mother,  or  either  of  them  for  the  space  of  one 
year  from  the  death.  The  survivors  above  mentioned  may  also  recover 
the  damages  sustained  by  them  by  the  death  of  the  parent  or  child  or 
husband  or  wife,  as  tlie  case  may  be." 

Article  2316,  id.,  reads  as  follows : 

"Every  person  is  responsible  for  the  damage  he  occasions  not  merely 
by  his  act,  but  by  his  negligence,  his  imprudence  or  his  want  of 
skill." 

And  Article  2317 : 

"  We  are  responsible  not  only  for  the  damage  caused  by  our  own  act, 
but  for  that  which  is  caused  by  the  act  of  persons  for  whom  we  are 
answerable,  or  of  the  things  whicli  we  have  in  our  custody." 

It  is  not  seriously  contended  in  this  case  that  Article  2453  of  the 


326  TERRITORIAL  JURISDICTION.  [PART  I. 

Revised  Statutes  of  the  State  ■warrants  the  maintenance  of  the  present 
suit,  or  fixes  any  liability  upon  the  City  of  New  Orleans  because  of  the 
death  of  Abbagnato  at  the  hands  of  a  mob,  as  1-ecited  in  the  petition. 
As  we  consider  the  statute  and  the  fact  of  its  existence  on  the  statute 
Look,  it  goes  rather  to  deny  the  right  to  recover  in  this  case  than  to 
support  it,  for  it  shows  clearly  that  in  the  legislative  mind  the  statute 
was  necessary  to  fix  liability  upon  municipal  corporations  for  damages 
to  property  done  by  mobs  ;  and  the  limitation  of  the  right  to  recover 
damages  to  property  only  shows  a  clear  legislative  intent  that  beyond 
property,  and  for  life  or  limb,  municipal  corporations  should  not  be 
responsible.  The  entire  right  of  the  plaintiff  in  error  to  recover  dam- 
ages must  then  be  based  upon  Article  2315  and  the  subsequent  articles 
of  the  Civil  Code,  above  quoted.  Article  2315,  as  originally  adopted, 
■was  as  follows  : 

"Every  act  whatever  of  man  that  canses  damage  to  another  obliges 
him  by  whose  fault  it  happened  to  repair  it." 

It  was  under  this  article  that  the  decision  in  Huhgh  v.  Railroad  Co., 
supra,  was  rendered,  holding  that  an  action  for  damages  caused  by  the 
homicide  of  a  free  human  being  cannot  be  maintained.  In  regard  to 
the  article  the  court  says : 

"  The  provisions  of  this  article,  however  general  and  comprehensive 
its  terms  may  be,  are  found  more  than  once  recited  in  terms  equally 
general  and  comprehensive  in  the  laws  of  the  15th  title  of  the  7th 
Partida.  The  article  was  inserted  in  the  Code  of  1809,  at  a  time  when 
the  Spanish  laws  were  in  force.  It  was  put  and  retained  to  this  time 
in  the  Code,  not  for  the  purpose  of  making  any  change  in  the  law,  but 
because  it  was  a  principle  which  was  in  its  proper  place  in  a  Code ;  a 
principle  which  would  be  equally  recognized  as  a  necessary  conservative 
element  of  society,  and  equally  obligatory,  whether  it  was  formally  en- 
acted in  a  Code  or  not.  *  *  *  Merlin,  in  giving  his  conclusions 
before  the  Court  of  Cassation,  in  the  Case  of  Michel,  Heynier  et  ah, 
respecting  the  Article  1382  of  the  Code  Napoleon,  which  is  identical  with 
the  Article  2291  of  our  Code,  says  :  '  The  principle  laid  down  in  Article 
1382  is  not  new.  It  is  drawn  from  the  natural  law ;  and,  long  before 
the  Napoleon  Code,  the  Roman  laws  had  solemnly  proclaimed  it. 
Long  before  that  Code,  the  Frencli  laws  had  recognized  and  assumed 
its  existence.' " 

We  understand  from  this  that  the  article  of  the  Civil  Code  in  ques- 
tion was  not  an  innovation  of  the  civil  law,  in  force  in  the  State,  intro- 
ducing new  principles  and  establishing  new  duties  and  responsibilities 
which  did  not  before  exist.  It  is  a  part  of  a  system  of  laws,  and  eon- 
trolling  only  where,  under  general  principles,  it  is  applicable  to  the 
facts  and  liabilities  of  a  particular  case.    We  have  shown  that  the  article 


CHAP.  11.]      CITY   OF   NEW   ORLEANS   V.    ABBAGNATO.  327 

was  not  enforceable  when  the  "  act  whatever  of  man  "  resulted  in  death, 
until  the  statute  so  declared,  and  this  because  of  the  intervention  of 
other  equally  well-recognized  principles  of  law.  To  make  it  applicable 
in  case  of  death  through  negligence,  the  Legislature  of  1855  amended 
the  article  by  adding  thereto  as  follows : 

"The  right  of  this  action  shall  survive  in  case  of  death  in  favor  of 
the  minor  children  and  widow  of  the  deceased  or  either  of  them,  and  in 
default  of  these  in  favor  of  the  surviving  father  and  mother  or  either 
of  them  for  the  space  of  one  year  from  the  death."  Acts  1855,  No.  223, 
p.  270. 

As  thus  amended,  the  scope  of  the  article  was  still  too  narrow  to  per- 
mit the  recovery  of  other  damages  than  such  as  the  deceased  himself 
would  have  had  had  he  survived  the  injury  {Vredenhurg  v.  Belian,  33 
La.  Ann.  627)  ;  and  therefore  the  article  was  again  amended  and  re- 
enacted,  adding  thereunto  as  follows : 

"  The  survivors  above  mentioned  may  also  recover  the  damages  sus- 
tained by  them  by  the  death  of  the  parent  or  child  or  husband  or  wife, 
as  the  case  may  be."     Acts  1884,  p.  94. 

Neither  the  amendment  of  1855  nor  that  of  1884  enlarges  the  scope 
of  the  article  as  to  the  persons  who  may  be  held  liable  for  negligence. 
The  amendments  go  no  further  than  to  provide  for  a  limited  survival 
of  the  action  and  an  enlarged  rule  of  damages.  The  article  is  appli- 
cable now  to  the  same  persons,  and  to  no  others,  as  before  amendment ; 
and  if,  before  amendment,  it  could  not  be  applied  so  as  to  hold  a  munici- 
pal corporation  liable  for  damages  resulting  from  the  acts  of  mobs 
and  riotous  assemblages,  it  cannot  be  so  applied  now.  Before  this 
amendment,  it  declared  well-known  principles  of  the  civil  law,  but  not 
all  of  them,  and  it  controlled  in  cases  where  the  application  of  other 
well-known  rules  and  principles  did  not  deny  the  action  or  defeat 
recovery.  As  amended,  it  should  have  the  same  construction  and  be 
given  the  same  force.  Before  the  act  of  1855,  it  was  not  contended, 
nor  could  it  have  been  successfully  contended,  that  the  article  was 
applicable  as  against  a  municipal  corporation  to  recover  damages  to 
either  person,  life,  or  property  resulting  from  the  acts  of  mobs  and 
riotous  assemblages.  For  these  reasons,  we  are  clear  that  neither  ex- 
pressly nor  by  implication  does  it  now  give  a  remedy  in  damages  against 
a  municipal  corporation  for  negligence  in  preserving  the  public  peace 
resulting  in  the  loss  of  life  by  the  acts  of  a  mob.  As  we  find  no  law 
of  the  State  of  Louisiana  giving  a  remedy  in  damages  against  a  munici- 
pal corporation  for  the  acts  done  by  a  mob  resulting  in  the  loss  of 
human  life,  we  are  compelled  to  reverse  the  judgment  of  the  court 
below. 

The  judgment  of  the  circuit  court  is  reversed,  and  the  case  is  re- 


328  TEREITOKIAL   JURISDICTION.  [PART  I. 

manded,  with  instructions-  to  maintain  the  exception  of  non-liability, 
and  dismiss  the  plaintiff's  petition.^ 


1  The  questions  growing  out  of  the  New  Orleans  affair,  in  1891,  present  some  pecu- 
liar features ;  and  forcibly  illustrate  certain  defects,  as  regards  the  conduct  of  foreign 
relations,  in  tlie  federal  system  of  tiie  United  States. 

The  Chief  of  Police  of  New  Orleans  had  been  assassinated  in  a  most  dastardly  man- 
ner; and  strong  suspicions  of  complicity  in  the  murder  rested  on  the  members  of  an 
Italian  society  called  the  "Mafia."  A  number  of  Italians  were  finally  arrested  and 
put  upon  their  trial,  but  in  tlie  end  were  acquitted  by  the  jury.  Believing  tliat  the 
jury  had  been  tampered  witli,  and  that  there  was,  in  tiiis  case,  a  signal  failure  of  jus- 
tice, a  public  indignation  meeting  was  held,  which  was  attended  by  the  better  class  of 
citizens  ;  inflammatory  addresses  were  made,  and  measures  apparently  adopted  to  take 
the  matter  out  of  the  hands  of  the  court.  Accordingly,  a  mob  assembled  the  next 
morning,  and,  as  it  would  appear,  without  any  protest  from  State  or  city  governments, 
broke  open  the  jail  where  tlie  accused  were  still  incarcerated,  and  shot  or  hanged  a 
number  of  the  suspected  Italians.  Among  this  number  were  several  who  were  not 
naturalized,  and  were,  therefore,  still  citizens  of  Italy. 

The  President,  by  the  Secretary  of  State,  expressed  regret  for  the  occurrence  and 
declared  his  purpose  to  lay  the  matter  before  Congress  at  its  next  session,  and  to 
recommend  that  an  indemnity  be  granted  to  the  families  of  the  murdered  men. 

The  Italian  Government  was  not  satisfied  with  tliis  position  of  the  United  States, 
but  demanded  further  that  the  leaders  of  the  mob  be  criminally  prosecuted  and  pun- 
ished according  to  law. 

With  this  demand  the  Government  of  the  United  States  could  not  comply,  however 
willing  it  might  be  to  do  so.  It  is  well  known  that  the  federal  courts  have  no  common- 
law  jurisdiction  in  criminal  matters;  it  was  impossible,  therefore,  to  institute  a  crinn'nal 
suit  against  these  persons  in  those  courts  ;  and  as  the  States  are  wholly  independent  of 
the  Federal  Government  in  respect  of  such  jurisdiction,  it  was  equally  impossible  to 
compel  the  government  of  the  State  of  Louisiana  to  institute  such  proceedings.  Tiie 
government  of  the  United  States  was  therefore  quite  helpless  in  this  aspect  of  the 
case,  and  could  only  listen  to  the  complaints  of  Italy,  and  try  to  explain  to  her  states- 
men the  intricacies  of  the  United  States  Constitution. 

It  is  undoubtedly  within  tiie  competence  of  Congress  to  confer  upon  the  federal 
courts  jurisdiction  in  this  class  of  cases  ;  but  as  yet  it  has  not  been  done. 

In  regard  to  the  merits  of  this  case,  it  would  seem  that  the  United  States  should 
accept  tlie  responsibilit}',  as  in  fact  they  have  done,  for  the  acts  of  the  mob.  In  tiie 
first  place,  these  persons  were  in  the  custody  of  the  State  government  and,  for  the  pur- 
poses of  international  law,  in  that  of  the  national  government,  —  and  therefore  entitled 
to  special  protection.  In  the  second  place,  there  was  no  serious  attempt  on  the  part  of 
the  proper  authorities  to  quell  the  riot;  and  it  is  generally  understood  that  a  govern- 
ment is  liable  internationally  for  injuries  done  to  "alien  residents  by  a  mob  which  by 
due  diligence  it  could  have  suppressed." 

Tiie  Italian  Government  eventually  withdrew  the  demand  for  the  punishment  of  the 
actors  in  tlie  affair,  and  accepted  a  money  indemnity  instead. 

For  other  cases  under  the  subject  of  this  section,  see  1  Wharton's  Digest,  473, 
482-486;  Calvo:  Droit  International,  5th  cd.,  Vol.  III.,  142-156.  And  see  the  case  of 
Don  Parijiro,  infra,  section  26,  in  wiiich  the  claim  for  damages  was  enforced  against 
Greece,  on  the  ground  that  it  was  impossible  to  obtain  justice  through  the  onl-nary 
channels  —  the  courts.     And  on  the  constitutional  difficulty,  see  an  excellent  article 


CHAPTER   III. 
JURISDICTION   ON   THE    HIGH  SEAS. 


Section  17. — ]\Ierchaxt   Vessels. 


WILSON  V.  McNAMEE. 
Supreme  Court  of  the  United  States,  1880. 

(102  United  States,  512.) 

Mr.  Justice  Swayxe  delivered  the  opinion  of  the  court. 

The  only  point  argued  here  was  the  validity  of  the  pilot  law  of  New 
York  with  reference  to  the  Constitution  of  the  United  States. 

At  the  close  of  the  opening  argument  of  the  learned  counsel  for  the 
plaintiff  in  error,  we  announced  that  the  affirmative  of  the  question  thus 
presented  was  so  well  settled  by  the  repeated  adjudications  of  this 
court,  that  we  had  no  desire  to  hear  the  counsel  for  the  defendant  in 
error  upon  the  subject. 

Thereafter,  the  counsel  who  had  been  heard  submitted  a  memoran- 
dum, in  which  he  called  our  attention  particularly  "to  the  tenth  point 
of  the  brief  of  the  plaintiff  in  error,  namely,  that  the  tender  took  place 
outside  of  the  jurisdiction  of  the  State  of  New  York."  He  added : 
"  This  question  has  never  yet  been  passed  upon  by  this  court  in  either 
of  the  other  pilot  cases." 

Our  opinion  will  be  confined  to  that  subject. 

There  are  several  answers  to  the  suggestion. 

by  M.  Despagnet :  Les  Difficultcs  Internationales  venant  de  la  Constitution  de  cer- 
tains Pays.    2  R.  G.  D.  I.,  184-199. 

Tlie  foreign  sojourner  is  entitled  to  an  equal,  not  greater,  protection  tiian  tlie 
native  resident.  When,  therefore,  through  civil  war  or  mob  violence  which  the  au- 
thorities cannot  control,  aliens  suffer  injury,  the  state  is  not  responsible  to  the  aliens 
for  injuries  thus  received.     New  Orleans  Riot,  1851,  2  Wharton's  Digest,  600. 

For  the  seizure  of  an  American  steamer  within  the  territorial  waters  of  Colombia, 
see  ^fontl|l>'s  Case,  1876,  2  Moore's  International  Arbitrations,  1421-1447.  On  the 
subject  of  this  note,  see  generally  1  Butler,  Treaty-making  Power,  14'J-lli6. —  Eu. 


330  JURISDICTION   ON   THE   HIGH    SEAS.  [PART  I. 

1.  The  objection  does  not  appear  to  have  been  taken  in  the  circuit 
court,  and  cannot,  therefore,  be  considered  here.  Edwards  v.  Elliott, 
21  Wall.  532. 

2.  A  vessel  at  sea  is  considered  as  a  part  of  the  territory  to  which  it 
belongs  when  at  home.  It  carries  with  it  the  local  legal  rights  and 
legal  jurisdiction  of  such  locality.  All  on  board  are  endowed  and  sub- 
ject accordingly.  The  pilot,  upon  his  boat,  had  the  same  authority 
from  the  laws  of  Xew  York  to  tender  and  demand  employment,  and 
the  same  legal  consequences,  under  the  circumstances,  followed  the 
refusal  of  the  master  as  if  both  vessels  had  then  been  infra  fauces 
terrce,  where  the  municipal  jurisdiction  of  the  State  was  complete  and 
exclusive.  The  jurisdiction  of  the  local  sovereign  over  a  vessel,  and 
over  those  belonging  to  her,  in  the  home  port  and  abroad  on  the  sea,  is, 
according  to  the  law  of  nations,  the  same.  Dana's  Wheaton,  p.  169, 
§  106  ;  1  Kent,  Com.  27  ;  Vattel,  bk.  1,  ch.  19.  §  216  ;  2  Rutherford's 
Inst.,  bk.  2,  ch.  9,  §§  8,  19. 

The  principle  here  recognized  is,  of  course,  subject  to  the  para- 
mount authority  of  the  Constitution  and  laws  of  the  United  States 
over  the  foreign  and  interstate  commerce  of  the  country,  and  the 
commercial  marine  of  the  country  engaged  in  such  commerce,  and 
subject  also  to  the  like  power  of  Congress  "  to  define  and  punish  pira- 
cies and  felonies  committed  on  the  high  seas  and  offences  against  the 
law  of  nations."     See  Ex  parte  McXiel,  13  Wall.  236. 

Speaking  of  the  universal  law  of  reason,  justice,  and  conscience,  of 
which  the  law  of  nations  is  necessarily  a  part,  Cicero  said :  "  Xor  is  it 
one  thing  at  Rome  and  another  at  Athens,  one  now  and  another  in  future, 
but  among  all  nations  it  is,  and  in  all  time  will  be,  eternally  and  immut- 
ably the  same."     Laetantiiis  Inst.  Div.,  bk,  7,  ch.  8. 

3.  Conceding  that  the  pilot  laws  of  the  several  States  are  regula- 
tions of  commerce,  Mr.  Justice  Story  said,  ''They  have  been  adopted 
by  Congress,  and  without  question  are  controllable  by  it."  2  Story, 
Const.  §  1071. 

Mr.  Chief  Justice  Marshall,  in  Gibbons  v.  Ogden,  said:  "When  the 
government  of  the  Union  was  brought  into  existence,  it  found  a  sys- 
tem for  the  regulation  of  pilots  in  force  in  every  State.  The  act 
which  has  been  mentioned  adopts  this  system,  and  gives  it  the  same 
validity  as  if  its  provisions  had  been  specially  made  by  Congress." 
9  Wheat.  1,  207.  The  long-continued  silence  of  Congress,  with  its 
plenary  power,  in  the  presence  of  such  legislation  by  the  States  con- 
cerned, is  itself  an  implied  ratification  and  adoption,  and  is  equivalent 
in  its  consequences  to  an  express  declaration  to  that  effect.  Atkins  v. 
Tlie  iJisintefjrating  Companij,  18  Wall.  272. 

The  several  acts  of  Congress  bearing  on  the  subject  are  fully  referred 


CHAP.  III.]  REGINA   V.   ANDERSON.  331 

to  in  £Jx  parte  McNiel,  supra.  In  that,  and  in  the  earlier  and  more 
elaborate  case  ol  Cooleij  y.  Board  of  Wardens  of  Port  of  PhUadelpliia^ 
12  How.  299,  this  subject,  in  all  its  aspects,  was  so  fully  considered 
that  further  remarks  on  the  present  occasion  are  deemed  unneces- 
sary. 

Judgment  affirmed.^ 


EEGIXA   V.   ANDERSOX. 

Court  for  Crowx  Case  Reserved,  1868. 

(11  Cox  C.  C.  198.) 

Case  reserved  by  Byles,  J.,  at  the  October  Sessions  of  the  Central 
Criminal  Court,  1868,  for  the  opinion  of  this  court. 

James  Anderson,  an  American  citizen,  was  indicted  for  murder  on 
board  a  vessel,  belonging  to  the  port  of  Yarmouth  in  Nova  Scotia. 

1  In  Crapo  v.  Kelly,  1872,  16  Wall.  610,  623,  the  court  said  : 

"The  question  then  arises,  wliile  thus  upon  tlie  higli  seas  was  she  in  law  within  the 
territory  of  Massacliusetts.     If  she  was,  the  insolvent  title  will  prevail. 

"It  is  not  perceived  that  this  vessel  can  be  said  to  be  upon  United  States  territory, 
or  within  United  States  jurisdiction,  or  subject  to  the  laws  of  the  United  States  regu- 
lating the  transfer  of  property,  if  such  laws  there  may  be.  Except  for  the  purposes 
and  to  the  extent  to  which  these  attributes  liave  been  transferred  to  the  United  States, 
tlie  State  of  Massachusetts  possesses  all  the  rights  and  powers  of  a  sovereign  State.  By 
lier  own  consent,  as  found  in  Article  1  of  the  Constitution  of  the  United  States,  slie  has 
abandoned  her  right  to  wage  war,  to  coin  money,  to  make  treaties,  and  to  do  certain 
other-acts  therein  mentioned.  None  of  tiie  subjects  tiiere  mentioned  affect  the  ques- 
tion before  us.  The  third  article  of  that  instrument  extends  the  judicial  power  of  the 
United  States  'to  all  cases  of  admiralty  and  maritime  jurisdiction.'  This  gives  the 
power  to  the  courts  of  the  United  States  to  try  those  cases  in  which  are  involved  ques- 
tions arising  out  of  maritime  affairs,  and  of  crimes  committed  on  the  high  seas.  To 
bring  a  transaction  within  that  jurisdiction,  it  must  be  not  simply  a  transaction  which 
occurred  at  sea,  as  the  making  of  a  contract,  but  one  in  which  tlie  question  itself  is  of 
a  maritime  nature,  or  arises  out  of  a  maritime  affair,  or  it  must  be  a  tort  or  crime 
committed  on  the  high  seas.  Over  such  cases  the  United  States  courts  have  jurisdic- 
tion;  that  is,  they  are  authorized  to  hear  and  determine  them.  No  rule  of  pro{)erty  is 
tiiereby  established.  This  remains  as  it  would  have  been  had  no  such  authority  been 
given  to  the  United  States  court. 

"  To  Congress  is  also  given  power  '  to  define  and  punish  piracies  and  felonies  com- 
mitted on  the  high  seas,  and  offences  against  the  law  of  nations.'  It  will  scarcely  be 
claimed  that  the  title  to  property  could  be  affected  by  this  provision.  Nor  does  the 
circumstance  that  the  Arctic  sailed  under  the  flag  of  the  United  States  and  was 
entitled  to  the  protection  of  that  government  against  insult  or  injury  from  the  citizens 
or  ships  of  other  nations,  touch  the  present  point.  None  of  these  instances  are  like 
that  of  the  passage  of  a  bankrupt  law  by  the  United  States,  which  acts  directly  upon 
the  property  of  all  the  citizens  of  all  the  States,  wherever  it  may  be.     Had  the  claim 


332  JURISDICTION   ox   THE   HIGH   SEAS.  [PART  I. 

She  was  registered  iu  London,  and  was  sailing  under  the  British 
flag. 

of  either  party  to  this  vessel  been  based  upon  a  proceeding  under  that  statute,  the  title 
would  liave  been  complete,  if  the  property  had  been  witiiin  the  territory  or  jurisdiction 
of  any  of  the  States  of  the  Union. 

"  It  is  not  perceived,  therefore,  that  the  relation  of  ^lassachusetts  to  the  Union  has 
any  effect  upon  the  title  to  this  vessel.  It  stands  as  if  that  State  were  an  independent 
sovereign  State,  unconnected  with  the  other  States  of  the  Union.  The  question  is  tiie 
same  as  if  this  assignment  had  been  made  in  London  by  a  British  insolvent  court,  ad- 
judicating upon  the  affairs  of  a  Britisli  subject. 

"  We  are  of  tlie  opinion,  for  tlie  purpose  we  are  considering,  tliat  the  ship  Arctio 
was  a  portion  of  the  territory  of  Massachusetts,  and  tlie  assignment  by  tlie  insolvent 
court  of  tiiat  State  passed  the  title  to  iier,  in  the  same  manner  and  witii  tlie  like  effect 
as  if  she  had  been  physically  within  the  bounds  of  that  State  when  the  assignment  was 
executed." 

In  McDonald  v.  MaJlory,  1879,  77  N.  Y.  546,  553,  556,  it  is  said:  "In  respect  to 
crimes  committed  on  tlie"  high  seas,  the  power  to  provide  for  their  punishment  has 
been  delegated  to  the  Federal  Government,  and  for  that  reason  State  laws  cannot  be 
applicable  to  them  ;  but  I  cannot  escape  tlie  conclusion  that  under  the  principle  of  tlie 
case  of  Crapo  v.  Kelly  civil  rights  of  action,  for  matters  occurring  at  sea  on  board  of  a 
vessel  belong  to  one  of  the  States  of  the  Union  must  depend  upon  tlie  laws  of  that 
State,  unless  the^'  arise  out  of  some  matter  over  wliicli  jurisdiction  has  been  vested  in 
and  exercised  by  the  government  of  tlie  United  States,  or  over  whicli  the  State  lias 
transferred  its  rights  of  sovereignty  to  tlie  United  States  ;  and  that  to  this  extent  the 
vessel  must  be  regarded  as  part  of  the  territory  of  the  State,  vviiile  in  respect  to  lier 
relations  with  foreign  governments,  crimes  committed  on  board  of  her,  and  all  other 
matters  over  which  jurisdiction  is  vested  in  the  Federal  Government,  she  must  be  re- 
garded as  part  of  the  territory  of  the  United  States  and  subject  to  the  laws  thereof." 
..."  There  is  nothing  in  the  nature  of  this  action  which  renders  it  exclusively  the 
subject  of  Federal  cognizance.  The  jurisdiction  of  the  States  and  of  the  United 
States  in  the  matter  of  personal  torts  committed  at  sea,  such  as  assaults  by  a  master 
on  his  crew,  injuries  to  passengers,  and  the  like,  are  concurrent,  tliough  remedies 
by  proceedings  in  rem  can  be  administered  only  by  the  courts  of  admiralty  of  tlie 
United  States.  The  field  of  legislation  in  respect  to  cases  like  the  present  one  lias  not 
been  occupied  by  the  general  government  and  is  tiierefore  open  to  the  States.  Steam- 
boat Co.  V.  Chase,  IG  Wall.  522,  5.30,  533.  Indeed  the  United  States  Court  of  Admi- 
ralty would  have  no  jurisdiction  in  such  a  case.  Steamboat  Co.  v.  Chase,  16  Wall.  522, 
530,  533  ;  Sherlock  v.  Allen,  93  U.  S.  99,  and  tiiere  is  no  greater  objection  to  extending 
the  operation  of  a  statute  of  this  description  to  a  vessel  at  sea  than  there  was  to  giving 
similar  operation  to  a  State  insolvent  law." 

Dr.  Wharton  (Commentaries  on  American  Law,  1884,  §  308)  says:  "  A  ship  at  sea 
is,  by  the  prevalent  opinion,  a  part  of  the  territory  of  the  State  whose  flag  she  bears, 
and  is  consequently  governed  by  the  laws  of  such  State.  As  between  the  several 
States  of  the  American  Union,  a  ship  is  governed  by  the  law  of  the  State  in  which 
she  is  registered.  A  ship  in  port,  however,  is  governed  by  port  law,  though  tliis  does 
not  apply  to  sliips  of  war."  For  ships  of  war,  see  Exchange  v.  McFaddon,  1812,  7  Cr. 
116,  ante. 

In  The  Lamimjton,  1898,  87  Fed.  752,  Thomas,  J.,  said  :  "  The  first  question  is  this : 
Did  the  accident  occur  on  British  territory  ?  Every  vessel  outside  the  juiisdiciioii  of 
a  foreign  power  is  a  detached,  floating  portion  of  the  territory  of  the  country  whose 


CHAP.  III.]  REGINA   V.    ANDERSON.  333 

At  the  time  of  the  offence  committed  the  vessel  was  in  the  river 
Garonne,  within  the  boundaries  of  the  French  empire,  on  lier  way  up 
to  Bordeaux,  which  city  is  by  the  course  of  the  river  about  ninety 
miles  from  the  open  sea.  The  vessel  had  proceeded  about  half-way 
up  the  river,  and  was  at  the  time  of  the  otfence  about  three  hundred 
yards  from  the  nearest  shore,  the  river  at  that  place  being  about  half 
a  mile  wide. 

The  tide  flows  up  to  the  place  and  beyond  it. 

No  evidence  was  given  whether  the  place  was  or  was  not  within  the 
limits  of  the  port  of  Bordeaux. 

It  was  objected  for  the  prisoner  that  the  offence  having  been  com- 
mitted within  the  empire  of  France,  the  vessel  being  a  colonial  vessel, 
and  the  prisoner  an  American  citizen,  the  court  had  no  jurisdiction  to 
try  him. 

I  expressed  an  opinion  unfavorable  to  the  objection,  but  agreed  to 
grant  a  case  for  the  opinion  of  this  court. 

The  prisoner  was  convicted  of  manslaughter. 

J.  Barn^ard  Byles. 

BoviLL,  C.  J.-^  There  is  no  doubt  that  the  place  where  the  offence 
was  committed  was  within  the  territory  of  France,  and  that  the  pris- 
oner was  therefore  subject  to  the  laws  of  France,  which  the  local 
authorities  of  that  realm  might  have  enforced  if  so  minded;  but  at  the 
time,  in  point  of  law,  the  offence  was  also  committed  within  British  ter- 

flag  it  flies,  and  under  whose  laws  it  is  registered.  The  Scotia,  14  Wall.  170,  184; 
Crapo  v.Kelli/,  16  Wall.  610,  624;  Wilson  v.  McjYumee,  102  U.  S.  572,  574  ;  In  re  Mon- 
can,  14  Fed.  44  ;  In  re  Ah  Sing,  13  Fed.  286;  U.  S.  v.  Bennett,^  Hughes,  466,  Fed.  Cas. 
No.  14,574;  McDonald  v.  Mallori/,  77  N.  Y.  546,  551,  553;  Wlieat.  Int.  Law  (Dana's 
ed.)  §  106;  3  Whart.  Int.  Law  Dig.  228;  Whart.  Conf.  Laws,  §  356 ;  1  Kent,  Comm. 
26;  A^att.  Law  Nat.  bk.  1,  ch.  19,  §  216;  1  Calvo,  552;  Bluntschli,  §  317 ;  1  Martens 
(French  Trans,  of  Leo),  496;  Seagrove  v.  Parks,  1  Q.  B.  Div.  551.  The  autliorities 
noted  so  perfectly  maintain  the  doctrine  stated  tliat  quotation,  amplification  or  illus- 
tration is  unnecessary.  The  broad  and  fundamental  principle  is  that  tlie  sovereignty 
of  a  nation  extends  to  its  private  ships,  and  this  dominion  is  never  shared  by  a  foreign 
power  wliere  tlie  internal  affairs  of  the  vessel  are  alone  involved,  and  wiiere  it  is  not 
within  the  territorial  domain  of  such  power.  It  results  from  tlie  foregoing  ;  (1)  That 
tortious  acts  are  governed  by  tlie  law  of  the  place  where  they  are  done.  (2)  That  a 
foreign  tribunal  will  never  afford  reparation  for  such  acts,  unless  they  are  unjustified 
both  by  the  law  of  the  place  where  they  occurred  and  by  the  law  of  the  forum.  (3) 
That  a  contract  creating  the  relation  of  master  and  servant,  made  in  a  country  for  a 
service  to  be  rendered  in  such  country,  imposes  only  such  obligations,  and  confers  only 
such  rights,  as  the  terms  of  the  contract  stipulate,  and  tiie  laws  of  sucli  country  imply. 
(4)  That  the  vessels  of  such  country  are,  even  upon  the  high  seas,  a  detached,  floating 
portion  of  its  territory,  and  exclusively  witiiin  the  influence  of  its  laws,  so  far  as  the 
internal  economy  of  the  vessel  is  concerned."  —  Ed. 

1  Arguments  of  counsel  and  tlie  concurring  opinions  of  Channell,  B.,  and  Lush,  JJ., 
are  omitted.  —  Ed. 


334  JURISDICTION   ON   THE   HIGH   SEAS.  [PART  I. 

ritory,  for  the  prisoner  Avas  a  seaman  on  board  a  merchant  vessel,  which, 
as  to  her  crew  and  master,  must  be  taken  to  have  been  at  the  same 
time  under  the  protection  of  the  British  flag,  and,  therefore,  also  amen- 
able to  the  provisions  of  the  British  law.  It  is  true  that  the  prisoner 
was  an  American  citizen,  but  he  had  with  his  own  consent  embarked 
on  board  a  British  vessel  as  one  of  the  crew.  Although  the  prisoner 
was  subject  to  the  American  jurisprudence  as  an  American  citizen,  and 
to  the  law  of  France  as  having  committed  an  offence  within  the  terri- 
tory of  France,  yet  he  must  also  be  considered  as  subject  to  the  juris- 
diction of  British  law,  which  extends  to  the  protection  of  British 
vessels,  though  in  ports  belonging  to  another  country.  From  the  pas- 
sage in  the  treatise  of  Ortolan,  already  quoted,  it  appears  that,  with, 
regard  to  offences  committed  on  board  of  foreign  vessels  within  the 
French  territory,  the  French  nation  will  not  assert  their  police  law 
unless  invoked  by  the  master  of  the  vessel,  or  unless  the  offence  leads 
to  a  disturbance  of  the  peace  of  the  port ;  and  several  instances  where 
that  course  was  adopted  are  mentioned.  Among  these  are  two  cases 
where  offences  were  committed  on  board  American  vessels  —  one  at 
the  port  of  Antwerp,  and  the  other  at  ^farseilles  —  and  where,  on  the 
local  authorities  interfering,  the  American  court  claimed  exclusive 
jurisdiction.  As  far  as  America  herself  is  concerned,  it  is  clear  that 
she,  by  the  statutes  of  the  23d  of  March,  1825,  has  made  regulations 
for  persons  on  board  her  vessels  in  foreign  parts,  and  we  have  adopted 
the  same  course  of  legislation.  Our  vessels  must  be  subject  to  the  laws 
of  the  nation  at  any  of  whose  ports  they  may  be,  and  also  to  the  laws 
of  our  country,  to  which  they  belong.  As  to  our  vessels  when  going 
to  foreign  parts  we  have  the  right,  if  we  are  not  bound,  to  make  regu- 
lations. America  has  set  us  a  strong  example  that  we  have  the  right 
to  do  so.  In  the  present  case,  if  it  were  necessary  to  decide  the  ques- 
tion on  the  17  &  18  Vict.,  c.  104,  I  should  have  no  hesitation  in  saying 
that  we  not  now  only  legislate  for  British  subjects  on  board  of  British 
vessels,  but  also  for  all  those  who  form  the  crews  thereof,  and  that 
there  is  no  difficulty  in  so  construing  the  statute  ;  but  it  is  not  neces- 
sary to  decide  that  point  now.  Independently  of  that  statute,  the 
general  law  is  sufficient  to  determine  this  case.  Here  the  offence  was 
committed  on  board  a  British  vessel  by  one  of  the  crew,  and  it  makes 
no  difference  whether  tlie  vessel  was  within  a  foreign  port  or  not.  If 
the  offence  had  been  (committed  on  the  high  seas  it  is  clear  that  it 
would  have  been  within  the  jurisdiction  of  the  admiralty,  and  the 
Central  Criminal  Court  has  now  the  same  extent  of  jurisdiction.  Does 
it  make  any  difference  because  the  vessel  was  in  the  river  Garonne 
half-way  between  the  sea  and  the  head  of  the  river  ?  The  place  where 
the  offence  was  committed  was  in  a  navigable  part  of  the  river  below 


CHAP.  III.  ]  EEGINA   V.   ANDERSON.  335 

bridge,  and  where  the  tide  ebbs  and  flows,  and  great  ships  do  lie  and 
hover.  An  offence  committed  at  such  a  place,  according  to  the  author- 
ities, is  within  the  Admiralty  jurisdiction,  and  it  is  the  same  as  if  the 
offence  had  been  committed  on  the  high  seas.  On  the  whole  I  come 
to  the  conclusion  that  the  prisoner  was  amenable  to  the  British  law, 
and  that  the  conviction  was  right. 

Byles,  J.  I  am  of  the  same  opinion.  I  adhere  to  the  opinion  that 
I  expressed  at  the  trial.  A  British  ship  is,  for  the  purposes  of  this 
question,  like  a  floating  island  ;  and,  when  a  crime  is  committed  on 
board  a  British  ship,  it  is  within  the  jurisdiction  of  the  Admiralty 
Court,  and  therefore  of  the  Central  Criminal  Court,  and  the  offender 
is  as  amenable  to  British  law  as  if  he  had  stood  on  the  Isle  of  Wight 
and  committed  the  crime.  Two  English  and  two  American  cases  de- 
cide that  a  crime  committed  on  board  a  British  vessel  in  a  river  like 
the  one  in  question,  where  there  is  the  flux  and  reflux  of  the  tide,  and 
wherein  great  ships  do  hover,  is  within  the  jurisdiction  of  the  Ad- 
miralty Court;  and  that  is  also  the  opinion'expressed  in  Kent's  Com- 
mentaries. The  only  effect  of  the  ship  being  within  the  ambit  of 
Freuch  territory  is  that  there  might  have  been  concurrent  jurisdiction 
had  the  French  claimed  it.  I  give  no  opinion  on  the  question  whether 
the  case  comes  within  the  enactment  of  the  jNIerchant  Shi[iping  Act. 
Heff.  V.  LojJez,  7  Cox  C.  C.  431 ;  Reg.  v.  Armstrong^  13  Cox  C.  C.  184. 

Blackburx,  J.  I  am  of  the  same  opinion.  It  is  not  necessary  to 
decide  whether  the  case  comes  within  the  ^Merchant  Shipping  Act. 
If  the  offence  could  have  been  properly  tried  in  any  English  court, 
then  the  Central  Criminal  Court  had  jurisdiction  to  try  it.  It  has 
been  decided  by  a  number  of  cases  that  a  ship  on  the  high  seas, 
carrying  a  national  flag,  is  part  of  the  territory  of  that  nation  whose 
flag  she  carries;  and  all  persons  on  board  her  are  to  be  considered  as 
subject  to  the  jurisdiction  of  the  laws  of  that  nation,  as  much  so  as 
if  they  had  been  on  land  within  that  territory.  From  the  earliest 
times  it  has  been  held  that  the  maritime  courts  have  jurisdiction 
over  offences  committed  on  the  high  seas  where  great  ships  go,  which 
are,  as  it  were,  common  ground  to  all  nations,  and  that  the  jurisdic- 
tion extends  over  ships  in  rivers  or  places  where  great  ships  go  as  far 
as  the  tide  extends.  In  this  case  the  vessel  was  within  French  terri- 
tory, and  subject  to  the  local  jurisdiction,  if  the  French  authorities 
had  chosen  to  exercise  it.  Our  decisions  establish  that  the  admiralty 
jurisdiction  extends  at  common  law  over  British  ships  on  the  high 
seas,  or  in  waters  where  great  ships  go  as  far  as  the  tide  ebbs  and 
flows.  The  cases  Rer  v.  Allen  and  Rex  v.  Jemot  are  most  closely  in 
point,  and  establish  that  offences  committed  on  board  British  ships  in 
places  where  great  ships  go  are  within  the  jurisdiction  of  the  Court 


336  JURISDICTION   ON   THE    HIGH    SEAS.  [PART   I. 

of  Admiralty,  and  consequently  of  the  Central  Criminal  Court.  In 
America  it  appears,  from  the  case  of  The  United  States  v.  Wlltherger, 
that  it  was  held  that  the  United  States  had  no  jurisdiction  in  the  case 
of  the  crime  of  manslaughter  committed  on  board  a  United  States 
vessel  in  the  river  Tigris  in  China;  but,  as  I  understand  the  Amer- 
ican cases  of  Thomas  v.  Lane  and  The  United  States  v.  Coomhes,  a  rule 
more  in  conformity  with  the  English  decisions  was  laid  down;  and 
upon  whose  authority  I  take  it  that  the  American  courts  would  agree 
with  us.  It  is  clear,  therefore,  that  a  person  on  board  an  American 
ship  is  subject  to  the  American  law.  My  view  is,  that  when  a  person 
is  on  board  a  vessel  sailing  under  the  British  flag,  and  commits  a 
crime,  that  nation  has  a  right  to  punish  him  for  the  crime  com- 
mitted by  him;  and  clearly  the  same  doctrine  extends  to  those  who 
are  members  of  the  crew  of  the  vessel. 

Conviction  affirmed.'^ 

1  In  U.  S.  V.  Bennett,  1877,  3  Hughes,  466,  Fed.  Cas.  No.  14,574,  the  crime  was  com- 
mitted on  tiie  Garonne  near  the  city  of  Bordeaux,  and  the  <lecision  v/as  tiie  same. 
See,  also,  Reg.  v.  Lopez,  and  Rerj.  v.  Saltier,  1858,  D.  &  B.  525. 

In  1851,  a  case  arose  in  reference  to  seamen,  supposed  not  to  be  citizens  of  the 
United  States,  wiio,  having  committed  a  mutiny  at  sea,  on  board  of  tlie  American 
vessel  Atnlan'a,  were  brougiit  baclc  in  tlie  vessel  to  Marseilles,  where,  on  the  applica- 
tion of  the  consul  of  the  United  States,  they  were  received  and  imprisoned  by  the 
local  autliorities  on  shore. 

Six  of  them  were  afterwards  on  his  application  taken  from  prison  and  placed  on 
board  the  AUilanta  for  conveyance  to  the  United  States  under  charge  of  crime.  Then, 
with  notice  to  the  consul,  but  in  spite  of  his  remonstrance,  the  local  authorities  went 
on  board  of  the  Atalanta,  forcibly  resumed  possession  of  the  prisoners,  and  replaced 
them  in  confinement  on  shore.     Mr.  Mason,  in  a  note  of  the  27th  of  June,  1856,  says  : 

"  It  is  the  first  instance,  in  which  a  vessel  wearing  the  flag  of  the  United  States, 
lying  in  a  French  port,  or  a  French  ship  lying  in  a  port  of  the  United  States,  has,  since 
the  date  of  the  treaty,  been  visited  by  police  officers  without  the  authority  of  the 
consul."  (MS.  Department  of  State.)  The  correspondence  between  the  two  govern- 
ments having  been  submitted  to  the  Attorney-General  of  the  Un'ted  States,  he  con- 
curred in  opinion  with  tiie  American  Minister,  "  that  tlie  local  authority  of  Marseilles 
exceeded  its  lawful  power  in  substance,  as  well  as  in  form,  and  tliat  tliere  could  be  no 
conflict  on  the  part  of  France  with  other  powers  on  account  of  the  nationality  of  the 
prisoners,  for  they  were  always  in  the  constructive,  if  not  in  the  actual,  custody  of  the 
United  States."     8  Opin.  Att'y-Gen.  73. 

In  the  case  of  John  Anderson,  1879,  Great  Britain  admitted  the  contention  of  the 
United  States,  that  a  crime  committed  upon  an  American  merchant  vessel  while 
sailing  on  the  high  seas  was  properly  triable  in  the  United  States,  and  the  action  of 
the  Indian  authorities  in  trying  Anderson  in  Calcutta,  in  which  port  the  vessel  sub- 
sequently arrived,  was  disavowed  by  the  British  Government.  1  Wharton's  Digest, 
123,  125.  —  Ed. 


CHAP.  III.]  KEGINA    V.    LESLEY. 


REGINA  V.  LESLEY. 
Court  for  Crown  Cases  Reserved,  1860. 

(Bell's  Crown  Cases,  220.) 

The  prosecutor  and  others  were  Chiliaus  who  were  banished  by 
their  government  from  Chili  to  England.  The  government  of  Chili 
liired  the  defendant  to  take  the  banished  men  to  England  in  his  ves- 
sel, then  lying  in  the  territorial  waters  of  Chili.  This  plan  was  carried 
out  and  now  the  defendant  is  prosecuted  for  false  imprisonment.^ 

Ekle,  C.  J. :  —  "la  this  case  the  question  is  whether  a  conviction 
for  false  imprisonment  can  be  sustained  upon  the  following  facts. 
(Stating  substantially  as  above.) 

"  Then,  can  the  conviction  be  sustained  for  that  which  was  done 
within  the  Chilian  waters  ?    We  answer  no. 

"  We  assume  that  in  Chill  the  act  of  the  government  toward  its 
subjects  was  lawful ;  and  although  an  English  ship  in  some  respects 
carries  with  her  the  laws  of  her  country  in  the  territorial  waters  of 
a  foreign  state,  yet  m  other  respects  she  is  subject  to  the  laws  of 
that  state  as  to  acts  done  to  the  subjects  thereof. 

"  We  assume  that  the  government  could  justify  all  that  it  did 
within  its  own  territory,  and  we  think  it  follows  that  the  defendant 
can  justify  all  that  he  did  there  as  agent  for  the  government  and 
under  its  authority. 

"  In  Dohree  v.  Napier^  2  Bing.  N.  C,  781,  the  defendant,  on  behalf 
of  the  Queen  of  Portugal,  seized  the  plaintiff's  vessel  for  violating  a 
blockade  of  a  Portuguese  port  in  time  of  war.  The  plaintiff  brought 
trespass;  and  judgment  was  for  the  defendant,  because  the  Queen 
of  Portugal,  in  her  own  territory,  had  a  right  to  seize  the  vessel  and 
to  employ  whom  she  would  to  make  the  seizure ;  and  therefore  the 
defendant,  though  an  Englishman  seizing  an  English  vessel,  could 
justify  the  act  under  the  employment  of  the  Queen. 

"  We  think  that  the  acts  of  the  defendant  in  Chili  became  lawful 
on  the  same  principle,  and  that  there  is  therefore  no  ground  for  the 
conviction. 

"  The  further  question  remains,  Can  the  conviction  be  sustained  for 
that  which  was  done  out  of  the  Chilian  territory  ?  and  we  think  it 
can. 

"  It  is  clear  that  an  English  ship  on  the  high  sea,  out  of  any  for- 

^  Sliort  statenieut  substituted  for  that  of  tlie  report.  —Ed. 
2-i 


338  JURISDICTION    ON   THE   HIGH    SEAS.  [PART  I. 

eign  territory,  is  subject  to  the  laws  of  England  ;  and  persons,  whether 
foreign  or  English,  on  board  such  ship,  are  as  much  amenable  to 
English  law  as  they  would  be  on  English  soil. 

"  In  Regina  v.  Sattler^  Dears.  &  Bell's  C.  C,  525,  this  principle  was 
acted  on,  so  as  to  make  the  prisoner,  a  foreigner,  responsible  for  mur- 
der on  board  an  English  ship  at  sea.  The  same  principle  has  been 
laid  down  by  foreign  writers  on  international  laAV  among  which  it  is 
enough  to  cite  Ortolan,  '  Sur  la  Diplomatic  de  la  Mer,'  liv.  2,  cap.  13. 

"The  merchant  shipping  Act,  17  &  18  Vict.  C.  104,  §  267,  makes  the 
master  and  seamen  of  a  British  ship  responsible  for  all  offences  against 
property  or  person  committed  on  the  sea  out  of  her  Majesty's  do- 
minions as  if  they  had  been  committed  within  the  jurisdiction  of  the 
admiralty  of  England. 

"  Such  being  the  law,  if  the  act  of  the  defendant  amounted  to  a 
false  imprisonment,  he  was  liable  to  be  convicted.  Now,  as  the  con- 
tract of  the  defendant  was  to  receive  the  prosecutor  and  the  others  as 
prisoners  on  board  his  ship  and  to  take  them,  without  their  consent, 
over  the  sea  to  England,  although  he  Avas  justified  in  first  receiving 
them  in  Chili,  yet  that  justification  ceased  when  he  passed  the  line 
of  Chilian  jurisdiction  and  after  that  it  was  a  wrong  which  was  inten- 
tionally planned  and  executed  in  pursuance  of  the  contract,  amounting 
in  law  to  a  false  imprisonment. 

"  It  may  be  that  transportation  to  England  is  lawful  by  the  law  of 
Chili,  and  that  a  Chilian  ship  might  so  laAvfully  transport  Chilian 
subjects ;  but  for  an  English  ship,  the  laws  of  Chili,  out  of  the  state, 
are  powerless,  and  the  lawfulness  of  the  acts  must  be  tried  by  Eng- 
lish laAv. 

"  Eor  these  reasons,  to  the  extent  above  mentioned,  the  conviction 
is  aflB.rmed." 


THE    '' BELGENLAXD." 
Supreme  Court  of  the  United  States,  1884. 

(114  United  Suttes  Reports,  .355.) 

This  case  grcAV  out  of  a  collision  in  mid-ocean  between  the  Norwe- 
gian barque  Luna  and  the  Belgian  steamer  Belgenland,  in  consequence 
of  Avhich  the  Luna  Avas  run  doAvn  and  sunk.  Part  of  the  crcAV  of  the 
L^una^  hicluding  the  captain,  Avere  rescued  by  the  steamer  and 
brought  to  Philadelphia.     Tlie  captain  at  once  libelled  the  Belgen- 


CHAP.  III.]  THE    "  BELGENLAND."  339 

land.    The  District  Court  decided  in  favor  of  the  Ubellant,  giving  a 
verdict  for  $50,000. 

The  Circuit  Court  confirmed  the  verdict,  and  the  libellee  now 
appeals  to  the  U.  S.  Supreme  Court.  Only  so  much  of  the  case  is 
given  as  refers  to  jurisdiction. 

Mr.  Justice  Bradley  delivered  the  opinion  of  the  court :  ^ 
*  *  *  We  shall   content  ourselves  with  inquiring  what  rule  is 
followed  by  Courts  of  Admiralty  in  dealing  with  maritime  causes 
arising  between  foreigners  and  others  on  the  high  seas. 

"  This  question  is  not  a  new  one  in  these  courts.  Sir  William 
Scott  had  occasion  to  pass  upon  it  in  1799.  An  American  ship  was 
taken  by  the  French  on  a  voyage  from  Philadelphia  to  London,  and 
afterwards  rescued  by  her  crew,  carried  to  England,  and  libelled  for 
salvage  ;  and  the  court  entertained  jurisdiction.  The  crew,  however, 
though  engaged  in  the  American  ship,  were  British  born  subjects, 
and  weight  was  given  to  this  circumstance  in  the  disposition  of  the 
case.  The  judge,  however,  made  the  following  remarks  :  'But,  it  is 
asked,  if  they  were  American  seamen,  would  this  court  hold  plea  of 
their  demands  ?  It  may  be  time  enough  to  answer  this  question 
whenever  the  fact  occurs.  In  the  meantime,  I  will  say  without 
scruple  that  I  can  see  no  inconvenience  that  would  arise  if  a  British 
court  of  justice  was  to  hold  plea  in  such  a  case;  or  conversely,  if 
American  courts  were  to  hold  pleas  of  this  nature  respecting  the 
merits  of  British  seamen  on  such  occasions.  For  salvage  is  a  ques- 
tion of  jus  gzntium,  and  materially  different  from  the  question  of  a 
mariner's  contract,  which  is  a  creature  of  the  particular  institutions  of 
the  country,  to  be  applied  and  construed  and  explained  by  its  own 
particular  rules.  There  might  be  good  reason,  therefore,  for  this 
court  to  decline  to  interfere  in  such  cases  and  to  remit  them  to  their  own 
domestic  forum  ;  but  this  is  a  general  claim,  upon  the  general  ground 
of  quantmn  meruit^  to  be  governed  by  a  sound  discretion,  acting  on 
general  principles ;  and  I  can  see  no  reason  why  one  country  should 
be  afraid  to  trust  to  the  equity  of  the  court;^  of  another  on  such  a 
question  of  such  a  nature,  so  to  be  determined.'  The  Two  Friends^ 
1  Ch.  Rob.,  271,  278. 

The  law  has  become  settled  very  much  in  accord  with  these 
views.  That  was  a  case  of  salvage  ;  but  the  same  principles  would 
seem  to  apply  to  the  case  of  destroying  or  injuring  a  ship,  as  to  that 
of  saving  it.  Both,  when  acted  on  the  high  seas  between  persons  of 
different  nationalities,  come  within  the  domain  of  the  general  law  of 
nations,  or  communis  juris^  and  are  prima  facie  proper  subjects  of 

1  Short  statement  substituted  for  that  of  the  report  and  portions  of  the  judgment 
are  omitted.  —  Ed. 


340  JURISDICTION    OX    THE    HIGH   SEAS.  [PART  I. 

inquiry  in  any  court  of  admiralty  wliicli  first  obtains  jurisdiction 
of  the  rescued  or  offending'  sliip  at  the  solicitation  in  justice  of  the 
meritorious,  or  injured,  parties. 

The  same  question  of  jurisdiction  arose  in  another  salvage  case 
which  came  before  this  court  in  1804,  Uason  v.  The  Blaireau,  2 
Cranch,  240. 

There  a  French  ship  was  saved  by  a  British  ship,  and  brought 
into  a  port  of  the  United  States ;  and  the  question  of  jurisdiction 
Avas  raised  by  Mr.  Martin,  of  Maryland,  who,  howev-er,  did  not  press 
the  point,  and  referred  to  the  observations  of  Sir  William  Scott  in 
T/ie  Two  Friends.  Chief  Justice  Marshalt.,  speaking  for  the  court, 
disposed  of  the  question  as  follows  : — '  A  doubt  has  been  suggested,' 
said  he,  'respecting  the  jurisdiction  of  the  court,  and  upon  reference 
to  the  authorities,  the  j^oint  does  not  appear  to  have  been  ever 
settled.  These  doubts  seem  rather  founded  on  the  idea  that  upon 
principles  of  general  policy,  this  court  ought  not  to  take  cognizance 
of  a  case  entirely  between  foreigners,  than  from  any  positive  inca- 
pacity to  do  so.  On  weigliing  the  considerations  drawn  from  public 
convenience,  those  in  favor  of  the  jurisdiction  appear  much  to  over- 
balance those  against  it,  and  it  is  the  opinion  of  this  court,  that, 
whatever  doubts  may  exist  in  a  case  where  the  jurisdiction  may 
be  objected  to,  there  ought  to  be  none  where  the  parties  assent 
to  it.'  *  *  * 

In  the  absence  *  *  *  of  treaty  stipulations,  however,  the  case  of  for- 
eign seamen  is  undoubtedly  a  special  one,  when  they  sue  for  wages 
under  a  contract  which  is  generally  strict  in  its  character,  and  framed 
according  to  the  laws  of  the  country  to  which  the  ship  belongs ; 
framed  also  with  a  view  to  secure,  in  accordance  with  those  laws, 
the  rights  and  interests  of  the  ship-owners  as  well  as  those  of  master 
and  crew,  as  well  when  the  ship  is  abroad  as  wlien  she  is  at  home. 
Nor  is  this  special  character  of  the  case  entirely  absent  Avhen  for- 
eign seamen  sue  the  master  of  their  ship  for  ill-treatment.  On 
general  principles  of  comity.  Admiralty  Courts  of  other  countries 
will  not  interfere  between  the  parties  in  such  cases  unless  there  is 
special  reason  for  doing  so,  and  will  require  the  foreign  consul  to  be 
notified,  and,  though  not  absolutely  bound  by,  will  always  pay  due 
respect  to,  his  wishes  as  to  taking  jurisdiction. 

But,  although  the  courts  will  use  a  discretion  about  assuming 
jurisdiction  of  controversies  between  foreigners  in  cases  arising 
beyond  the  territorial  jurisdiction  of  the  country  to  which  the  courts 
belong,  yet  wliere  such  controversies  are  coinmunis  jarisy  that  is, 
where  they  arise  under  the  common  law  of  nations,  special  grounds 
Bhonld  appear  to  induce  the  court  to  deny  its  aid  to  a  foreign  suitor 


CHAP.    III.]  THE    '•  RELGENLAND."  341 

when  it  has  jurisdiction  of  the  ship  or  party  charged.  The  exist- 
ence of  jurisdiction  in  all  such  cases  is  beyond  dispute ;  the  only 
question  will  be,  whether  it  is  expedient  to  exercise  it.  *  *  * 

In  another  case,  Justice  Story  examined  the  subject  very  fully, 
and  came  to  the  conclusion  that,  wherever  there  is  a  maritime  lien 
on  the  ship,  an  Admiralty  Court  can  take  jurisdiction  on  the  prin- 
ciple of  the  civil  law,  that  in  proceedings  in  rem  the  proper  forum  is 
the  locxis  rei  sitce.  He  added :  '  With  reference,  therefore,  to  what 
may  be  deemed  the  public  law  of  Europe,  a  proceeding  in  rem  may 
well  be  maintained  in  our  courts  where  the  property  of  a  foreigner 
is  within  our  jurisdiction.  Nor  am  I  able  to  perceive  how  the  exer- 
cise of  such  judicial  authority  clashes  with  any  principles  of  public 
policy.' 

That,  as  we  have  seen,  was  a  case  of  bottomry,  and  Justice  Stort 
in  answer  to  the  objection  that  the  contract  might  have  been  entered 
into  in  reference  to  the  foreign  law,  after  showing  that  such  law 
might  be  proven  here,  said :  '  In  respect  to  maritime  contracts,  there 
is  still  less  reason  to  decline  the  jurisdiction,  for  in  almost  all 
civilized  countries  these  are  in  general  substantially  governed  by 
the  same  rules.' 

Justice  Story's  decision  in  this  case  was  referred  to  by  Dr. 
Lushington  with  strong  approbation  in  the  case  of  the  Golubchick 
1  W.  Kob.,  143,  decided  in  1840,  and  was  adopted  as  authority  for  his 
taking  jurisdiction  in  that  case.  *  *  * 

A  Danish  ship  was  sunk  by  a  Bremen  ship,  and  on  the  latter 
being  libelled,  the  respondents  entered  a  protest  against  the  jurisdic- 
tion of  the  court.  But  jurisdiction  was  retained  by  Dr,  Lushixgton" 
who,  amongst  other  things,  remarked :  'An  alien  friend  is  entitled 
to  sue  (in  our  courts)  on  the  same  footing  as  a  British-born  subject, 
and  if  the  foreigner  in  this  case  had  been  resident  here,  and  the 
cause  of  action  had  originated  infra  corpus  cornitatus,  no  objection 
could  have  been  taken.  Reference  being  made  to  the  observations 
of  Lord  Stowell  in  cases  of  seamen's  wages,  the  judge  said:  'AH 
questions  of  collision  are  c\yxe<,t\ox\s  communis  juris  ;  but  in  case  of 
mariners'  wages,  whoever  engages  voluntarily  to  serve  on  board  a 
foreign  ship,  necessarily  undertakes  to  be  bound  by  the  law  of  the 
country  to  which  such  ship  belongs,  and  the  legality  of  his  claim 
must  be  tried  by  such  law.  One  of  the  most  important  distinctions, 
therefore,  respecting  cases  where  both  parties  are  foreigners  is, 
whether  the  case  be  commimis  Juris  or  not.  *  *  *  If  these  parties 
must  wait  until  the  vessel  that  has  done  the  injury  returned  to  its 
own  country,  their  remedy  might  be  altogether  lost,  for  she  might 
never  return,  and,  if  she  did,  there  is  no  part  of  the  world  to  which 
they  might  not  be  sent  for  their  redress.' 


342  JURISDICTION    ON    THE    HIGH    SEAS.  [PART  I. 

In  the  subsequent  case  of  the  Griefsxoald^  1  Swabey,  430,  de- 
cided by  the  same  judge  in  1859,  wliich  arose  out  of  a  collision 
between  a  British  barque  and  a  Persian  ship  in  the  Dardanelles,  Dr. 
Ltjshington  said  :  '  In  cases  of  collision,  it  has  been  the  practice  of 
this  country,  and,  so  far  as  I  know,  of  the  European  States  and  of 
the  United  States  of  America,  to  allow  a  party  alleging  grievance 
by  a  collision  to  proceed  in  rem  against  the  ship  wherever  found, 
and  this  practice,  it  is  manifest,is  most  conducive  to  justice,  because 
in  very  many  cases  a  remedy  in  personam  would  be  impracticable.' 

The  subject  has  frequently  been  before  our  own  Admiralty 
Courts  of  original  jurisdiction,  and  there  has  been  but  one  opinion 
expressed,  namely,  that  they  have  jurisdiction  in  such  cases,  and 
that  they  will  exercise  it  unless  special  circumstances  exist  to  show 
that  justice  would  be  better  subserved  by  declining  it.  *  *  * 

Indeed,  where  the  parties  are  not  only  foreigners,  but  belong  to 
different  nations,  and  the  injury  or  salvage  service  takes  place  on  the 
high  seas,  there  seems  to  be  no  good  reason  why  the  party  injured, 
or  doing  the  service,  should  ever  be  denied  justice  in  our  courts ; 
neither  party  has  any  peculiar  claim  to  be  judged  bj^  the  municipal 
law  of  his  own  country,  since  the  case  is  pre-eminently  one  commu- 
nis juris,  and  can  generally  be  more  impartially  and  satisfactorily 
adjudicated  by  the  court  of  a  third  nation  having  jurisdiction  of 
the  res  or  parties,  than  it  could  be  by  the  courts  of  either  of  the 
nations  to  which  the  litigants  belong.  As  Judge  Deadt  very  justly 
said,  in  a  case  before  him  in  the  district  of  Oregon :  '  The  parties 
cannot  be  remitted  to  a  home  forum,  for,  being  subjects  of  different 
governments,  there  is  no  such  tribunal.  The  forum  which  is  com- 
mon to  them  both  by  the  jus  gentium  is  any  court  of  admiralty 
within  the  reach  of  Avhose  process  they  may  both  be  found.'  Bern- 
hard  V.  Greene,  3  Sawyer,  230,  235. 

As  to  the  law  which  should  be  applied  in  cases  between  parties, 
or  ships,  of  different  nationalties,  arising  on  the  high  seas,  not 
within  the  jurisdiction  of  any  nation,  there  can  be  no  doubt  that  it 
must  be  the  general  maritime  law,  as  understood  and  administered 
in  the  courts  of  the  country  in  which  the  litigation  is  prosecuted.^ 

^  See    The  Lamwglon,  1898,  87  Fed.  752,  which  states  and  follows  tiie  fundanicntal 
principles  of  this  case.  — Ed. 


CHAP.  III.]  CHURCH   V.    HUBBART.  343 


Section   18.  —  Municipal   Seizures   beyond  the  Three-Mile  Limit. 


CHURCH  V.   HUBBART. 
Supreme  Court  of  the  United  States,  1804. 

(2  Crunch,  187.) 

While  tlie  American  vessel  Aurora  was  between  four  and  five  leagues 
from  the  Brazilian  coast  she  was  seized  by  the  government  of  Brazil 
for  attempting  to  carry  on  illicit  trade  with  its  citizens. 
Marshall,  Ch.  J.,  delivered  the  opinion  of  the  court.^ 
As  a  general  principle,  the  nation  which  prohibits  commercial  inter- 
course with  its  colonies  must  be  supposed  to  adopt  measures  to  make 
that  prohibition  effectual.  They  must,  therefore,  be  supposed  to  seize 
vessels  coming  into  their  harbors  or  hovering  on  their  coasts  in  a  con- 
dition to  trade.*  *  * 

To  reason  from  the  extent  of  protection  a  nation  will  afford  to 
foreigners  to  the  extent  of  the  means  it  may  use  for  its  own  security 
does  not  seem  to  be  perfectly  correct.  It  is  opposed  by  principles 
which  are  universally  acknowledged.  The  authority  of  a  nation 
within  its  own  territory  is  absolute  and  exclusive.  The  seizure  of  a 
vessel  within  the  range  of  its  cannon  by  a  foreign  force  is  an  inva- 
sion of  that  territory  and  is  a  hostile  act,  which  it  is  its  duty  to  repel. 
But  its  power  to  secure  itself  from  injury  may  certainly  be  exercised 
beyond  the  limits  of  its  territory.  Upon  this  principle  the  right  of 
a  belligerent  to  search  a  neutral  vessel  on  the  high  seas  for  contra- 
band of  war,  is  universally  admitted,  because  the  belligerent  has  a 
right  to  prevent  the  injury  done  to  himself  by  the  assistance  in- 
tended for  his  enemy ;  so,  too,  a  nation  has  a  right  to  prohibit  any 
commerce  with  its  colonies.  Any  attempt  to  violate  the  laws  made 
to  protect  this  right,  is  an  injury  to  itself  which  it  may  prevent,  and 
>  it  has  a  right  to  use  the  means  necessary  for  its  prevention.  These 
means  do  not  appear  to  be  limited  within  any  certain  marked  boun- 
daries, which  remain  the  same  at  all  times  and  in  all  situations.  *  *  * 
In  different  seas  and  on  different  coasts,  a  wider  or  more 
contracted  range,  in  which  to  exercise  the  vigilance  of  the  govern- 
ment of  the  country,  will  be  assented  to.    Thus  in  the  channel  *  *  * 

1  Statement  of  the  case  is  omitted  and  only  so  much  of  tbe  opinion  is  given  as  re- 
lates to  tlie  rigiit  of  the  Brazilian  Government  to  seize  a  foreign  vessel  so  situated.  —  Ed. 


344  JURISDICTION    ox   THE   HIGH   SEAS.  [PART  T. 

the  seizure  of  vessels  on  suspicion  of  attempting;  an  illicit  trade 
must  necessarily  be  restricted  to  very  narrow  limits,  but  on  the 
coast  of  South  America,  seldom  frequented  by  vessels  but  for  the 
purpose  of  illicit  trade,  the  vigilance  of  the  government  may  be  ex- 
tended somewhat  further.  *  *  * 

The  right  of  the  Spaniards  was  supposed  to  be  exercised  un- 
reasonably and  vexatiously,  but  it  never  was  contended  that  it  could 
only  be  exercised  within  the  range  of  the  cannon  from  their  bat- 
teries. Indeed,  the  right  given  to  our  own  revenue  cutters,  to  visit 
vessels  four  leagues  from  our  coast,  is  a  declaration  that  in  the 
opinion  of  the  American  government,  no  such  principle  as  that  con- 
tended for,  has  a  real  existence.^ 

1  Mr.  Dana,  in  speaking  of  tliis  decision  (Dana's  Wlieaton,  259,  note),  saj's,  as  to 
tlie  assertion  tiiat  tlie  seizure  of  a  vessel  four  leagues  from  tlie  co.ist  iloes  not  render 
tlie  seizure  invalid,  "this  remark  must  now  be  treated  as  an  unwarranted  admission. 
...  It  may  be  said  that  the  j)rinciple  is  settled,  that  municipal  seizures  cannot  be 
made,  for  any  purpose,  beyond  territorial  waters.  It  is  also  settled,  tliat  the  limit  of 
these  waters  is,  in  the  absence  of  treaty,  the  marine  leajj^ue  or  the  cannon-shot.  It 
cannot  now  be  successfully  maintained,  either  that  municipal  visits  and  search  may 
be  beyonil  the  territorial  waters  for  special  purposes,  or  that  there  are  different  bounds 
of  that  territory  for  different  objects.  ...  In  tlie  earlier  cases,  the  courts  were  not 
strict  as  to  standards  of  distance,  where  no  foreign  powers  intervened  in  the  causes. 
In  later  times,  it  is  safe  to  infer  that  judicial  as  well  as  political  tribunals  will  insist  on 
a  line  of  marine  territorial  jurisdiction  for  the  exercise  of  force  on  foreign  vessels  in 
time  of  peace  for  all  purposes  alike." 

There  still  stands  upon  the  statute  book  of  the  United  States  a  law  passed  in  1799 
authorizing  their  revenue  officers  to  stop  and  visit  foreign  vessels  four  leagues  from 
the  coast.  The  British  "  Hovering  Act,"  passed  in  1734,  and  which  doubtless  suggested 
the  American  act,  contained  a  similar  provision.  But  this,  says  ^Ir.  Boyd  (Boyd's 
Wheaton,  241),  has  long  since  been  repealed.  "The  present  custom's  legislation 
makes  a  distinction  as  regards  the  extent  of  jurisdiction  claimed  for  revenue  purposes, 
between  ships  belonging  to  British  subjects  and  ships  belonging  to  foreigners."  There 
is  no  longer  any  authority  under  English  laws  to  visit  a  foreign  vessel  beyond  the 
three-mile  limit.     See  Custom's  Consolidations  Act,  1876,  Sec.  134. 

See  further  on  this  subject,  the  case  of  Hose  v.  Himeli/,  1808,  4  Cranch,  241,  in 
which  the  Supreme  Court  of  the  United  States  held  that  a  seizure,  under  customs 
regulations,  of  a  foreign  vessel  beyond  the  territorial  waters  of  a  State,  was  not  valid : 
See,  also,  the  case  of  Hudson  v.  Gnestier,  1810,  6  Cranch,  281;  The  Apollon,  1824,  9 
Wheat.  362.  In  The  Itata  (United  States  and  Chilean  Claims  Commission,  convention 
of  Aug.  7, 1892),  3  Moore,  Int.  Arb.  oOG7-o071,  the  question  of  seizure  in  foreign  juris- 
diction for  violation  of  our  neutrality  laws  was  carefully  considered.  The  judgment 
was  as  follows:  "  After  an  examination  of  many  authorities  on  international  law,  and 
numerous  decisions  of  courts,  we  are  of  opinion  that  the  United  Stales  conmiitted  an 
act  for  which  they  are  liable  in  damages  and  for  which  they  should  be  held  to  answer." 
For  facts  of  the  case,  see  U.  S.  v.  Trumbull,  infra,  731.  —  Ed. 


CHAP.  III.]  OPINION    OF    SIR    LEOLINE   JENKINS.  315 


Section  19.  —  Piracy. 


OPIXIOX   OF   SIPv   LEOLIXE   JENKINS. 

ClIAUGE    TO    THE    JuRY,     1668. 

(Life  of  Sir  Leoliue  Jenkins,  I.,  LXXXVI.) 

"  There  are  some  sorts  of  felonies  and  offences,  which  cannot  be 
committed  anywhere  else  but  upon  the  sea,  within  the  jurisdiction 
of  the  Admiralty.  These  I  shall  insist  upon  a  little  more  particu- 
larly, and  the  chiefest  in  this  kind  is  piracy. 

"  You  are  therefore  to  inquire  of  all  Pirates  and  sea-rovers  ;  they 
are  in  the  eye  of  the  law  hostes  humam  generis^  enemies  not  of  one 
nation  or  of  one  sort  of  people  only,  but  of  all  mankind.  They  are 
outlawed,  as  I  may  say,  by  the  laws  of  all  nations,  that  is,  out  of 
the  protection  of  all  princes  and  of  all  laws  whatsoever.  Everybody 
is  commissioned,  and  is  to  be  armed  against  them,  as  against  rebels 
and  traitors,  to  subdue  and  to  root  them  out. 

"That  which  is  called  robbing  upon  the  highway,  the  same  being 
done  upon  the  water  is  called  piracy.  Kow  robbery,  as  'tis  dis- 
tinguished from  thieving  or  larceny,  implies  not  only  the  actual 
taking  away  of  my  goods,  while  I  am,  as  we  say,  in  peace,  but  also 
the  putting  me  in  fear,  by  taking  them  away  by  force  and  arms  out 
of  my  hands,  or  in  my  sight  and  presence ;  when  this  is  done  upon 
the  sea,  "\^■ithout  a  lawful  commission  of  war  or  re[)risals,  it  is  down- 
right piracy. 

"  And  such  was  the  generosity  of  our  ancient  English,  such  the 
abhorrence  of  our  laws  against  pirates  and  sea-rovers,  that  if  any 
of  the  King's  subjects  robbed  or  murdered  a  foreigner  upon  our  seas 
or  within  our  ports,  though  the  foreigner  happened  to  be  of  a  nation 
in  hostility  against  the  King,  yet  if  he  had  the  King's  passport,  or 
the  Lord  Admiral's,  the  offender  was  published,  not  as  a  felon  only, 
but  this  crime  was  made  high  treason,  in  that  great  Prince  Henry 
the  Fifth's  time ;  and  not  only  himself,  but  all  his  accomplices  were 
to  suffer  as  traitors  against  the  crown  and  dignity  of  the  King."  ^ 

'  For  the  leading  case  of    U.  S.  v.  Smith,  1820,  5  Wlieat.  153,  see  §  1,  supra.  —  Ed. 


346  JURISDICTION   ON   THE   HIGH   SEAS.  [PART  I. 

LWITED  STATES  v.  THE  "  AMBROSE  LIGHT." 

United  States  District  Court  for  So.  Dist.  of  N.  Y.,  1885. 

(25  Federal,  408.) 

The  libel  in  this  case  was  filed  to  procure  the  condemnation  of  the 
brig  Ambrose  Light,  which  was  brought  into  this  port  as  prize  on 
June  3,  1885,  by  Lieut.  "Wright  and  a  prize  crew,  detached  from  the 
L^nited  States  gun-boat  Alliance,  under  Commander  Clarke,  by  whose 
orders  the  brigantine  had  been  seized  on  the  twenty-fourth  of  April. 
The  seizure  was  made  in  the  Caribbean  sea,  about  twenty  miles  to 
the  westward  of  Cartagena. 

The  commander  was  looking  for  the  insurgent  Preston,  by  whose 
order  Colon  had  shortly  before  been  fired,  to  the  great  loss  and  injury 
of  our  citizens. 

Observing  the  brigantine  displaying  a  strange  flag,  viz. ,  a  red  cross 
on  a  white  ground,  he  bore  down  upon  her,  and  brought  her  to  by  a 
couple  of  shots  across  her  bows.  Before  coming  to,  she  exhibited  the 
Colombian  flag.  On  examination,  some  sixty  armed  soldiers  were 
found  concealed  below  her  decks,  and  one  cannon  was  aboard,  with 
a  considerable  quantity  of  shot,  shell,  and  ammunition.  Preston  was 
not  found.  Her  papers  purported  to  commission  her  as  a  Colombian 
man-of-war,  and  read  as  follows :  (Translation.) 

"  I,  Pedroa  Lara,  governor  of  the  province  of  Barranquilla,  in  the 
state  of  Bolivia,  in  the  LTnited  States  of  Colombia,  with  full  powers 
conferred  by  the  citizen  president  of  the  state,  I  give  to  whom  it  may 
concern  this  patente  of  the  sailing  vessel  Ambrose  Light,  that  she 
may  navigate  as  a  Colombian  vessel-of-war  in  the  waters  touching 
the  coast  of  this  republic,  in  the  Atlantic  ocean. 

"  Therefore,  the  general  commandants  and  captains  of  the  vessels 
of  war  of  the  friendly  nations  of  Colombia  are  requested  to  give  this 
vessel  all  the  consideration  that  by  right  belongs  to  the  vessels  of 
the  class  of  the  Ambrose  LAght  of  all  civilized  nations.  Li  the  faith 
of  which  we  have  given  these  presents,  and  signed  with  rubric  with 
the  secretary  of  my  office,  in  the  city  of  Barranquilla,  on  the  eight- 
eenth day  of  the  month  of  April,  1885. 

(Signed)  "  Pedroa  Lara 

The  Secretary  [Sig.],  "R.  A.  Del  Valle. 

(Indorsed  : )  "  Office  of  the  Military, 

"  Barranquilla,  April  18,  1885. 

"  Registered  and  noted  in  folio  and  book,  respectively. 

"  The  General  in  Chief,  N.  Juneno  Collante. 

"  Adjutant  and  Secretary,  A.  Solanom." 


CHAP.  III.]      UNITED   STATES   V.   THE   "  AMBROSE   LIGHT."  347 

Believing  tliis  commission  to  be  irregular,  and  to  show  no  lawful 
authority  to  cruise  as  a  man-of-war  on  tlie  high  seas,  Commander 
Clarke  reported  her  under  seizure,  in  accordance  with  tlie  naval 
regulations,  to  Admiral  Jowett,  commanding  tlie  North  Atlantic 
squadron,  then  cruising  in  the  Central  American  waters,  and  the 
admiral  directed  the  vessel  to  be  taken  to  New  York  for  adjudication 
as  prize.  The  vessel  was  at  first  supposed  to  belong  to  citizens  of 
the  United  States.  The  proofs  showed  that  she  had  been  sold  to, 
and  legally  belonged  to,  Colente,  one  of  the  chief  military  leaders  of 
the  insurgents  at  Barranquilla.  None  of  her  officers  or  crew  were 
citizens  of  the  United  States.  She  was  engaged  upon  a  hostile 
expedition  against  Cartagena,  and  designed  to  assist  in  the  blockade 
and  siege  of  that  port  by  the  rebels  against  the  established  govern- 
ment of  the  United  States  of  Colombia.  She  had  left  Sabanilla  on 
April  20th,  bound  for  Baru,  near  Cartagena,  where  she  expected  the 
soldiers  aboard  to  disembark.  She  was  under  the  orders  of  the 
colonel  of  the  troops,  whose  instructions  were  to  shoot  the  captain 
if  disobedient  to  his  orders.  Further  instructions  were  to  fight  any 
Colombian  vessel  not  showing  the  white  flag  with  a  red  cross. 

Sabanilla,  and  a  few  other  adjacent  sea-ports,  and  the  province  of 
Barranquilla,  including  the  city  of  Barranquilla,  had  been  for  some 
months  previous,  and  still  were,  under  the  control  of  the  insurgents. 
The  proofs  did  not  show  that  any  other  depredations  or  hostilities 
were  intended  by  the  vessel  than  such  as  might  be  incident  to  the 
struggle  between  the  insurgents  and  the  government  of  Colombia, 
and  to  the  so-called  blockade  and  siege  of  Cartagena. 

As  respects  any  recognition  of  the  insurgents  by  foreign  powers, 
it  did  not  appear  in  evidence  that  up  to  the  time  of  the  seizure  of  the 
vessel,  on  April  24,  1885,  a  state  of  war  had  been  recognized  as  exist- 
ing, or  that  the  insurgents  had  ever  been  recognized  as  a  de  facto 
government,  or  as  having  belligerent  rights,  either  by  the  Colombian 
government,  or  by  our  own  government,  or  by  any  other  nation. 
The  claimants  introduced  in  evidence  a  diplomatic  note  from  our 
Secretary  of  State  to  the  Colombian  minister,  dated  April  24,  1885, 
which,  it  was  contended,  amounted  to  a  recognition  by  implication 
of  a  state  of  war.  The  government  claimed  the  forfeiture  of  the  ship 
as  piratical,  under  the  law  of  nations,  because  she  was  not  sailing 
under  the  authority  of  any  acknowledged  power.  The  claimants 
contended  that,  being  actually  belligerent,  she  was  in  no  event 
piratical  by  the  law  of  nations ;  but  if  so,  that  the  subsequent  re- 
cognition of  belligerency  by  our  government  by  implication  entitles 
her  to  a  release. 


848  JURISDICTION    ON   THE   HIGH   SEAS.  [PART  I. 

Bkowx,  J.^  6.  That  recognition  by  at  least  some  established 
government  of  a  "state  of  war,"  or  of  the  belligerent  rights  of  insur- 
gents, is  necessary  to  prevent  their  cruisers  from  being  held  legally 
piratical  by  the  courts  of  other  nations  injuriously  affected,  is  either 
directly  affirmed,  or  necessaril}  implied  from  many  adjudged  cases  ; 
and  I  have  found  no  adjudication  in  which  a  contrary  view  is  even 
intimated. 

This  great  weight  of  authority,  drawn  from  every  source  that  au- 
thoritatively makes  up  the  law  of  nations,  seems  to  me  fully  to  war- 
rant the  conclusion  tliat  the  public  vessels  of  war  of  all  nations, 
for  the  preservation  of  the  peace  and  order  of  the  seas,  and  the 
security  of  their  own  commerce,  have  the  right  to  seize  as  piratical 
all  vessels  carrying  on,  or  threatening  to  carry  on,  unlawful  private 
warfare  to  their  injury;  and  that  privateers,  or  vessels  of  war,  sent 
out  to  blockade  ports,  under  the  commissions  of  insurgents,  unrecog- 
nized by  the  government  of  any  sovereign  power,  are  of  that  char- 
acter, and  derive  no  protection  from  such  void  commissions. 

It  thus  appears  that  the  rules  laid  down  and  implied  in  the  decis- 
ions of  our  supreme  court  in  the  cases  of  Rose  v.  Ilimely  and  U.  S. 
V.  Palmer,  nearly  70  years  ago,  have  been  since  almost  universally 
followed.  The  practical  responsibility  of  determining  whether  in- 
surgent vessels  of  war  shall  be  treated  as  lawful  belligerents,  or  as 
piratical,  rests  where  the  supreme  court  then  in  effect  decided  that 
it  ought  to  rest,  viz.,  with  the  political  and  executive  departments  of 
the  government.  These  departments  have  it  in  their  power,  at  any 
moment,  through  the  granting  or  withholding  of  recognition  of  bel- 
ligerency, and  through  the  extent  of  such  recognition  as  they  may 
choose  to  accord,  virtually  to  determine  bow  such  cruisers  shall  be 
treated  by  the  courts. 

Even  after  judgment  and  sentence  the  prisoners  may,  like  Smith 
and  his  associates,  convicted  before  Mr.  Justice  Grier,  be  treated, 
and  exchanged,  as  prisoners  of  war.  And  it  is  with  those  depart- 
ments, exclusively,  that  the  discretion  ought  to  rest  to  determine  when 
and  how  its  technical  rights  against  rebel  cruisers  shall  be  enforced. 
Its  naval  regulations  will  be  framed  accordingly  ;  and  any  seizures 
made  under  such  regulations  may  be  enforced,  or  at  any  moment 
remitted,  at  the  pleasure  of  those  departments. 

Where  insurgents  conduct  an  armed  strife  for  political  ends,  and 
avoid  any  infringement  or  menace  of  the  rights  of  foreign  nations  on 
the  high  seas,  the  modern  practice  is,  in  the  absence  of  treaty  stipu- 
lations or  other  special  ties,  to  take  no  notice  of  the  contest.     One  of 

1  Only  a  few  extracts  are  given  from  tlie  eliiborate  "opinion  "  ratlicr  tlian  "judg- 
ment "  in  tliis  case.  —  Ed. 


CHAP.  III.]       UNITED    STATES    V.    THE    "  AMBROSE   LIGHT."  349 

the  earliest  applications  of  this  rule  that  I  have  met  is  in  the  answer 
of  the  states-general  to  Sir  Joseph  York's  demand  in  1779  for  the 
surrender  of  Paul  Jones'  prizes  as  piratically  captured,  in  which  their 
Mightinesses  say  that  '  they  had  for  a  century  past  strictly  observed 
the  maxim  that  they  will  in  no  respect  presume  to  judge  of  the  legal- 
ity or  illegality  of  the  actions  of  those  who,  ujion  the  open  sea,  have 
taken  any  vessels  that  do  not  belong  to  this  country.'  On  this  point 
Prof.  Lawrence,  in  his  recent  Hand-book  of  Int.  Law  (London,  1884), 
says : 

'  \Yhen  a  community,  not  being  a  state  in  the  eye  of  international 
law,  resorts  to  hostilities,  it  may,  in  respect  of  war,  be  endowed  with 
the  rights  and  subjected  to  the  obligations  of  a  state  if  other  powers 
accord  it  what  is  called  recognition  of  belligerency.  Neutral  powers 
should  not  do  this  *  *  *  unless  it  affect  by  the  struggle  the  interests 
of  the  recognizing  state.  If  the  struggle  is  maritime,  recognition  is 
almost  a  necessity.  The  controversy  of  1861  illustrates  the  whole 
question.' 

Tlie  practice  is  stated  by  Hall  as  follows:  'When,  however, 
piratical  acts  have  a  political  object,  and  are  directed  solely  against 
a  particular  state,  it  is  not  the  practice  for  states  other  than  that 
attacked  to  seize,  and  still  less  to  punish,  the  persons  committing 
them.  It  would  be  otherwise,  so  far  as  seizure  is  concerned,  with  re- 
spect to  vessels  manned  by  persons  acting  with  a  political  object,  if 
the  crew,  in  the  course  of  carrying  out  their  object,  committed  acts 
of  violence  against  ships  of  other  states  than  that  against  which  their 
political  operation  was  aimed;  and  the  mode  in  which  the  crew  were 
dealt  with  would  probably  depend  on  the  circumstances  of  the  case.' 
Int.  Law,  §  81,  p.  223. 

Whether  a  foreign  nation  shall  exercise  its  rights  only  when  its 
own  interests  are  immediately  threatened,  or  under  special  provoca- 
tions onlyafter  injuries  inflicted  by  the  insurgents,  as  in  this  case,  at 
Colon,  is  a  question  purely  for  the  executive  department.  But  when 
a  seizure  has  been  made  by  the  navy  department,  under  the  regula- 
tions, and  the  case  is  prosecuted  before  the  court  by  the  government 
itself,  Qhiimingsummumjus, — its  extreme  rights — the  court  is  bound 
to  apply  to  the  case  the  strict  technical  rules  of  international  law. 
The  right  here  asserted  maybe  rarely  enforced;  the  very  knowledge 
that  the  right  exists  tends,  effectually,  in  most  cases,  to  prevent  any 
violation  of  it,  or  at  least  any  actual  interference  by  insurgents  with 
the  rights  of  other  nations.  But  if  the  right  itself  were  denied,  the 
commerce  of  all  nations  would  be  at  the  mercy  of  every  petty  con 
test  carried  on  by  irresponsible  insurgents  and  marauders  under  the 
name  of  war. 


350  JURISDICTION   ON   THE   HIGH   SEAS.  [PART  I. 

In  the  absence  of  any  recognition  of  these  insurgents  as  belligerents, 
I  therefore  hold  the  Ambrose  Light  to  have  been  lawfully  seized,  as 
bound  upon  an  expedition  technically  piratical.^ 

[On  the  other  ground,  however,  that  the  Secretary  of  State,  by  his 
note  to  the  Colombian  Minister,  April  24,  1885,  had  recognized  by  im- 
plication a  state  of  war,  the  vessel  was  released.] 

^  The  judgment  in  the  case  of  the  Anihruse  Light  has  called  forth  much  adverse 
criticism  ;  and  on  the  whole  the  weight  of  opinion  would  seem  to  be  against  tlie 
position  tiiat  insurgent  vessels  not  molesting  the  ships  of  other  nations  may  be  treated 
as  pirates.  See  a  criticism  of  this  case  by  Mr.  Francis  Wliarton,  in  8  Wharton's 
Digest,  469. 

In  tlie  case  of  United  States  v.  Baker,  1861,  5  Blatch.  6,  Judge  Nelson  charged  the 
jury  that  "  if  it  were  necessary  on  the  part  of  the  Government  to  bring  tlie  crime 
charge  dagainst  the  prisoners  (officers  of  the  privateer  Savamiah)  within  the  definition 
of  robbery  and  piracy  as  known  to  the  common  law  of  nations,  there  would  be  great 
difficulty  in  so  doing,  perhaps,  upon  the  counts,  certainly  upon  the  evidence.  For  that 
shows,  if  anything,  an  intent  to  depredate  upon  the  vessels  and  property  of  one  nation 
only,  the  United  States,  which  falls  far  short  of  tlie  spirit  and  intent  which  are  said  to 
constitute  the  essential  elements  of  the  crime.  But  the  robbery  charged  in  this  case 
is  that  wliich  the  act  of  Congress  (1820)  describes  as  a  crime,  and  may  be  denominated 
a  statute  offence  as  contradistinguished  from  that  known  to  the  law  of  nations.  The 
act  declares  tlie  person  a  pirate,  punishable  by  death,  who  commits  the  crime  of 
robbery  upon  the  higli  seas,  against  any  ship  or  vessel,"  &c.  The  jury  did  not  agree 
in  tills  case.  But  in  Philadelphia  four  individuals  were  convicted  for  the  same  offence. 
—  These  arrests  led  to  retaliatory  action  on  tiie  part  of  the  Confederate  States.  And 
on  the  31st  of  January,  1862,  an  order  was  issued  by  tlie  Secretary  of  State,  to  the 
marshals,  directing  the  transfer  of  all  prisoners  charged  with  piracy,  including  those 
who  had  been  convicted  at  Philadelpiiia,  to  a  military  prison  for  the  purpose,  it  was 
understood,  of  exchanging  them  as  prisoners  of  war.  Lawrence's  Wlieaton,  1863, 
p.  253,  note ;  3  Wharton's  Digest,  p.  465.  For  other  judicial  decisions  touching  the 
status  of  the  confederates  in  the  United  States,  see  the  Golden  Rocket  case  —  viz., 
Dole  V.  The  N.  E.  M.  M.  Ins.  Co.,  1863,  6  Allen,  873,  in  which  it  was  held  that  the 
"  rebels  "  in  that  war  were  not  pirates  jure  gentium.  The  best  report  of  this  case, 
both  as  regards  argument  and  judgment,  is  in  2  Clifford's  Ct.  Ct.  Reports,  1864, 
394-434.  See,  also,  the  singularly  well-balanced  and  considered  judgment  of  Wood- 
ward, C.  J.,  in  Fifield  v.  Ins.  Co.,  1864,  47  Pa.  St.  166,  168-174.  See  especially 
Dana's  Wheaton,  note  84,  196-200. 

It  may  be  of  interest  to  know  that  Rear-Admiral  (then  Lieutenant)  Albert  Kautz, 
was  the  first  prisoner  to  be  exchanged  in  the  Civil  War,  and  that  it  was  through  his 
instrumentality  and  personal  interview  with  President  Lincoln  that  the  exchange  of 
prisoners  was  effectuated  between  the  North  and  South.  See  Appleton's  Cyclopedia 
of  American  Biography,  sub.  nom.  Kautz,  and  two  singularly  delightful  articles 
by  the  Rear- Admiral  himself  in  Harper's  Weekly,  1898,  Vol.  XLII.  pp.  159-160; 
178-182.  —  Ed. 


CHAP,  in.]  THE  MAGELLAN   PIRATES.  351 


THE  MAGELLAN  PIRATES. 

EccL.  AND  Adm.  Court,  1853. 
(1  Spinks^  EccL  ^  Adm.  Rep.  8L) 

LusHiNGTOx,  J.    (extract) : — 

"  I  apprehend  that  in  the  administration  of  our  criminal  hiw, 
generally  speaking,  all  persons  are  held  to  be  pirates  who  are  found 
guilty  of  piratical  acts,  and  piratical  acts  are  robbery  and  murder 
upon  the  high  seas.  I  do  not  believe  that,  even  where  human  life 
was  at  stake,  our  courts  of  common  law  ever  thought  it  necessary 
to  extend  their  inquiry  further,  if  it  was  clearly  proved  against  the 
accused  that  they  had  committed  robbery  and  murder  upon  the  high 
seas.  In  that  case  they  were  adjudged  to  be  pirates,  and  suffered 
accordingly.  *  *  *  It  was  never,  so  far  as  I  am  able  to  find,  deemed 
necessary  to  inquire  whether  the  parties  so  convicted  had  intended 
to  rob  or  to  murder  on  the  high  seas  indiscriminately.  Though  the 
municipal  law  of  different  countries  may  and  does  differ  in  many 
respects  as  to  its  definition  of  piracy,  yet  I  apprehend  that  all  nations 
agree  in  this,  that  acts  such  as  those  which  I  have  mentioned,  when 
committed  on  the  high  seas,  are  piratical  acts,  and  contrary  to  the 
law  of  nations.  *  *  *  I  think  it  does  not  follow  that,  because  persons 
who  are  rebels  and  insurgents  may  commit  against  the  ruling 
powers  of  their  own  country  acts  of  violence,  they  may  not  be,  as 
well  as  insurgents  and  rebels,  pirates  also;  pirates  for  other  acts 
committed  towards  other  persons.  It  does  not  follow  that  rebels 
and  insurgents  may  not  commit  piratical  acts  against  the  subjects 
of  other  States,  especially  if  such  acts  were  in  no  degree  with  the 
insurrection  or  rebellion.  Even  an  independent  State  may,  in  my 
opinion,  be  guilty  of  piratical  acts.  What  were  the  Barbar}^  tribes  of 
olden  times  ?  what  are  many  of  the  African  tribes  at  this  moment  ? 
It  is,  I  believe,  notorious  that  tribes  now  inhabiting  the  African 
coast  of  the  Mediterranean  will  send  out  their  boats  and  catch  any 
ships  becalmed  upon  their  coasts  ? 

"  Are  they  not  pirates  because,  perhaps,  their  sole  livelihood  may 
not  depend  upon  piratical  acts  ?  I  am  aware  that  it  has  been  said 
that  a  State  cannot  be  piratical,  but  I  am  not  disposed  to  assent  to 
such  diction  as  a  universal  proposition."^ 

1  In  the  case  of  the  Montezuma,  1877,  it  was  held  and  correctly  so  that  ships  belong- 
ing to  insurgents,  and  confining  their  operations  to  the  parent  government,  are  not 


352  JURISDICTION   ON   THE   HIGH   SEAS.  [PART  I. 


LE  "LOUIS." 
High  Court  of  Admiralty,  1817. 

(2  Dodson,  210.) 

This  was  the  case  of  a  French  vessel  which  sailed  from  Martinique 
on  the  30fch  of  January,  1816,  destined  on  a  voyage  to  the  coast  of 
Africa  and  back,  and  was  captured  ten  or  twelve  leagues  to  the 
southward  of  Cape  Mesurada,  by  the  Queen  Charlotte  cutter,  on  the 
11th  of  March  in  the  same  year,  and  carried  to  Sierra  Leone. 

She  was  proceeded  against  in  the  Vice- Admiralty  Court  of  that 
colony,  and  the  information  pleaded,  —  1st,  that  the  seizors  were 
duly  and  legally  commissioned  to  make  captures  and  seizures.  2d, 
That  the  seizure  was  within  the  jurisdiction  of  the  court.  .3d,  That 
the  vessel  belonged  to  French  subjects  or  others,  and  was  fitted  out, 
manned  and  navigated  for  the  purpose  of  carrying  on  the  African 
slave-trade,  after  that  trade  had  been  abolished  by  the  internal  laws 
of  France,  and  by  the  treaty  between  Great  Britain  and  France. 
4th,  That  the  vessel  had  bargained  for  twelve  slaves  at  Mesurada, 
and  was  prevented  by  the  capture  alone  from  taking  them  on  board. 
5th,  That  the  brig  being  engaged  in  the  slave-trade,  contrary  to  the 
laws  of  France,  and  the  law  of  nations,  was  liable  to  condemnation, 
and  could  derive  no  protection  from  the  French  or  any  other  flag. 
6th,  That  the  crew  of  the  brig  resisted  the  Queen  Charlotte,  and 
piratically  killed  eight  of  her  crew,  and  wounded  twelve  others. 
7th,  That  the  vessel  being  engaged  in  this  illegal  traffic  resisted  the 
King's  duly  commissioned  cruisers,  and  did  not  allow  of  search  until 
overpowered  by  numbers.  And  8th,  That  by  reason  of  the  circum- 
stances stated,  the  vessel  was  out  of  the  protection  of  any  law,  and 
liable  to  condemnation.  The  ship  was  condemned  to  his  Majesty  in 
the  Vice-Admiralty  Court  at  Sierra  Leone,  and  from  this  decision  an 
appeal  was  made  to  this  court. 

Judgment.  —  Sir  W.  Scott.  — This  ship  was  taken  off  Cape  Mesu- 
rada, on  tlie  coast  of  Africa,  on  the  11th  of  March,  1816,  by  an 
English  colonial  armed  vessel,  after  a  severe  engagement,  which  fol- 

to  be  treated  as  pirates  by  fnrei.!?n  powers  (Calvo's  International  Law,  1,  591);  but 
it  seems  equally  well  establislied  that  rebels  of  one  state  may  be  treated  as  pirates 
by  otlier  States  if  they  extend  their  hostile  acts  to  the  sliips  or  citizens  of  the  latter 
states.  The  Iluascar,  1877,  3  Wharton's  Digest,  474,  and  see  comments  on  this  case  in 
Hall's  Int.  Law,  277-278.  —  Ed. 


CHAP.  III.]  LE   "  LOUIS."  353 

lowed  an  attempt  to  escape.  The  court  has  found  occasion  to  Lament 
that  the  particulars  of  this  melancholy  transaction  are  not  more 
circumstantially  brought  to  its  notice;  for,  in  the  mass  of  matter 
with  which  these  proceedings  are  clogged  (matter  which  can  have  no 
application  whatever  to  any  question  that  could  possibly  be  expected 
to  arise  in  the  case),  no  information  is  distinctly  conveyed  to'  the 
court,  what  preliminaries  led  to  this  unfortunate  conflict,  in  which 
no  fewer  than  twelve  lives  were  lost  on  the  British  side,  and  three 
on  the  other,  and  in  which  several  persons  on  both  sides  were 
wounded.  The  court  is  left  to  infer,  from  the  general  course  of  the 
transaction,  that  it  originated  in  a  demand  to  visit  and  search  the 
vessel,  on  a  suspicion  of  her  being  a  slave  trader,  and  in  a  resistance 
to  that  demand;  the  demand  and  the  resistance  being  maintained  to 
the  length  of  producing  the  calamitous  event  which  I  have  described. 
The  ship  seized  was,  in  appearance  and  in  fact,  a  French  ship, 
admitted  both  in  the  plea  and  in  the  argument  to  be  so  unquestion- 
ably, owned  and  navigated  by  Frenchmen,  originally,  indeed,  built  in 
America,  and  having  been  for  a  short  time  in  British  possession, 
which  had  ceased.  She  is  immediately  proceeded  against  in  the  Vice- 
Admiralty  Court  at  Sierra  Leone  (whither  she  had  been  carried),  as  a 
French  ship  violating  French  law  by  the  intention  of  purchasing 
slaves  for  the  purpose  of  carrying  them  to  her  port  in  Martinique. 
There  are  some  words  in  the  libel  which  certainly  can  have  no  con- 
sistent meaning  in  the  sentence  in  which  they  stand,  but  which,  if 
they  have  any  meaning  at  all,  seem  to  intimate  vaguely  and  unin- 
telligibly an  ownership  somewhere  else  than  in  French  subjects. 
Nothing,  however,  appears  that  at  all  excites  a  suspicion  that  she 
is  not  what  she  is  treated  as  being  both  by  the  parties  and  by  the 
court,  a  French  ship.  For  the  mere  circumstance  of  her  having  had 
English,  as  well  as  other  colors,  on  board,  cannot,  in  the  known 
practice  of  merchant  vessels,  excite  any  such  suspicion.  After  the 
admission  which  has  been  made,  that  she  had  a  contingent  intention 
at  least  of  trading  in  slaves,  as  well  as  other  commodities,  if  a  con- 
venient opportunity  should  offer,  I  feel  it  not  requisite  to  enter  into 
the  detail  of  the  many  circumstances  which  compel  that  admission. 
The  number  of  iron  manacles  on  board,  the  construction  of  the  plat- 
forms, the  magnitude  of  the  coppers,  the  quantity  and  quality  of  the 
provisions  in  store,  the  negotiations  with  the  natives  at  IMesurada, 
the  mysterious  passages  which  occur  in  the  correspondence  between 
the  owners,  all  tend  one  way,  to  show  a  contingent,  or  rather  a  pre- 
dominant intention  so  to  trade;  and  this  being  admitted,  the  court 
will  not  deem  itself  guilty  of  any  injustice  in  holding  that  the  legal 

question  is  the  same  as  if  the  intention  were  single  and  absolute;  for 

23 


354  JURISDICTION    ON   THE   HIGH    SEAS.  [PAUT  I. 

I  have  little  doubt  but  that  the  contingency  would  have  happened, 
and  the  opportunity  would  have  offered  and  would  have  been  used. 

At  Sierra,  proceedings  were  commenced,  which  led  to  the  first 
condemnation  of  the  ship  and  cargo.  Much  argument  has  been  em- 
ployed to  controvert  the  jurisdiction  of  the  court  upon  the  point  of 
locality,  which  I  do  not  think  it  necessary  to  examine  for  the  deter- 
mination of  the  present  cause.  I  will  suppose  the  jurisdiction  to 
be  duly  founded,  as  far  as  the  matter  of  locality  is  concerned,  and 
consider  only  whether  tlie  sentence  can  be  sustained,  giving  the 
authority  which  pronounced  it  the  benefit  of  a  supposed  indisputable 
jurisdiction. 

At  the  outset  of  the  proceedings,  the  seizor  describes  himself  as 
commissioned  to  make  captures  and  seizures.  It  certainly  appeared 
to  be  a  singular  commission  that  authorized  him  to  make  captures  in 
time  of  peace;  and  it  was  therefore  not  an  unnatural  curiosity  on  the 
l^art  of  the  court  to  desire  to  see  it.  The  commission,  after  repeated 
requisitions,  has  been  at  last  brought  in,  at  a  time  extremely  incon- 
venient for  the  purpose  of  any  careful  examination  by  the  court,  if 
that  were  necessary.  It  may,  however,  be  sufficient  to  state  that 
this  commission  professes  to  be  issued  by  the  governor  of  Sierra 
Leone,  on  the  25th  of  January,  1816,  to  be  founded  on  the  Slave 
Trade  Act,  51  Geo.  III.,  and  to  authorize  the  commander  to  seize  and 
detain  (for  I  do  not  find  that  the  word  capture  occurs)  all  ships  and 
vessels  offending  against  that  act,  or  any  other  act  abolishing  the 
slave  trade;  and,  after  stating  these  facts,  to  observe,  that  neither 
this  British  act  of  parliament,  nor  any  commission  founded  on  it,  can 
affect  any  right  or  interest  of  foreigners,  unless  they  are  founded 
upon  principles,  and  impose  regulations,  that  are  consistent  with  the 
law  of  nations.  That  is  the  only  law  which  Great  Britain  can  apply 
to  them;  and  the  generality  of  any  terms  employed  in  an  act  of 
parliament  must  be  narrowed  in  construction  by  a  religious  adherence 
thereto. 

Upon  the  course  of  the  proceedings  in  the  court  of  Sierra  Leone, 
after  the  manner  in  which  they  have  been  adverted  to  in  argument, 
I  should  desert  my  duty  if  I  did  not  make  some  remark,  without 
meaning  at  all  to  depart  from  that  tenderness  which  is  usually  shoAvn 
to  mere  informalities  in  the  practice  of  Vice -Admiralty  Courts.  I 
have  no  doubt  but  that  the  gentleman  under  whose  cognizance  these 
proceedings  passed,  carried  out  with  him,  among  many  other  laud- 
able qualities,  a  proper  zeal  for  the  purposes  of  the  establisliment  of 
Sierra  Leone;  and  I  have  as  little  doubt  that  he  possessed  a  still 
higher  zeal  for  his  own  immediate  and  paramount  duty,  the  correct 
and  equal  administration  of  justice  to  all  parties  who  might  come 


CFTAP.  III.]  LE   "  LOUIS."  355 

before  him.  But  it  is  impossible  to  deny  that  there  occur  in  tliese 
proceedings  incongruities,  arising  (as  it  should  seem)  from  inatten- 
tion somewhere,  not  only  to  the  common  forms  of  law,  but  to  the 
rational  principles  on  which  they  are  founded.  What  was  the  natural, 
as  well  as  legal  course?  Surely,  simple  and  obvious  enough;  for  the 
proctor,  after  lodging  in  the  registry  all  the  papers  found  on  board, 
and  citing  by  monition  the  party  to  appear,  to  give  a  libel  (answer- 
ing to  the  bill  of  indictment  in  criminal  cases)  stating  the  facts 
imputed,  and  the  law  that  is  charged  to  be  violated,  and  praying  the 
examination  of  his  witnesses  thereon,  and  the  judgment  of  the  court 
upon  the  effect  of  the  documents  and  testimony  to  be  produced. 
The  party  charged  has  a  right  to  give  his  claim,  stating  the  facts  by 
which  he  undertakes  to  discharge  himself  from  all  legal  censure,  and 
to  produce  his  witnesses  thereon.  Upon  the  result  of  the  whole 
evidence  so  furnished,  and  of  proper  special  interrogatories  adminis- 
tered under  the  immediate  authority  of  the  judge,  the  court  should 
pronounce  its  judgment.  What  is  done  here?  In  the  first  place,  the 
prize  interrogatories  calculated  for  the  transactions  of  war  are,  in- 
stantly on  bringing  in,  applied  to  this  transaction,  which,  however 
denominated  a  capture,  and  with  whatever  fatal  violence  accom- 
panied, is  in  truth  a  transaction  of  peace.  Then  special  interroga- 
tories are  administered,  non  constat  by  what  authority,  some  of  them, 
certainly,  not  very  fairly  (at  least,  according  to  common  notions) 
addressed  to  the  persons  from"  whom  the  answers  are  to  be  extracted. 
It  is  in  this  late  stage  of  the  proceeding  that  the  prosecutor  brings 
forth  his  libel  or  charge,  in  which  he  tells  the  judge  (whose  exclusive 
province  it  is  to  decide  on  the  sufficiency  of  the  proofs)  that  "the 
case  is  iucontestably  proved,"  both  in  law  and  in  fact;  the  law 
alleged  being,  that  the  slave  trade  is  prohibited  both  by  treaty  and 
by  the  internal  law  of  France;  and  the  facts  charged  being,  that  the 
party  was  trading  in  slaves,  and  resisted  search.  In  the  same  benev- 
olent view  of  saving  the  judge  the  entire  trouble  of  performing  his 
duty,  the  prosecutor  informs  him  that  "there  is  no  doubt  of  the  ship's 
being  fitted  out  for  the  slave  trade,"  and  "that  the  evidence  of  the 
master  is  all  evasive,"  and  prays  a  commission  of  inspection  to  ascer- 
tain the  fact  of  which  he  had  just  before  told  him  that  no  doubt 
whatever  existed,  and  the  party  is  then  cited  by  monition  to  appear, 
after  the  case  has  been  thus  incontestably  proved  against  him;  and 
then,  without  a  single  Avitness  examined  upon  the  libel,  without  the 
smallest  evidence  produced  of  the  foreign  law,  —  though,  upon  all 
principles  of  common  jurisprudence,  foreign  law  is  always  to  be 
proved  as  a  fact,  — the  judge,  having  properly  reduced  the  six  counts 
of  the  libel  to  two,  pronounces  the  ship  to  be  a  French   ship,   em- 


356  JUEISDICTIOX   ox   THE   HIGH    SEAS.  [PAET  I. 

ployed  illegally  (that  is,  against  the  French  law)  in  the  slave  trade; 
secondly,  that  she  resisted  by  force  the  legal  search  of  the  King's 
cruisers;  and  that,  on  both  accounts,  herself  and  cargo  are  to  be  con- 
fiscated. There  is,  I  think,  considerable  difficulty  in  vindicating  the 
correctness  of  these  proceedings,  except  upon  the  supposition  that 
persons  charged  with  a  concern  in  so  odious  a  traffic  are  instantly 
to  have  a  caput  lujyininn  placed  upon  their  shoulders,  and  are  not 
entitled,  in  the  course  of  proceedings  against  them,  to  the  ordinary 
forms  and  measures  of  justice.  However,  without  pressing  further 
observation  upon  the  proceedings  which  have  led  to  the  judgment,  I 
hasten  to  the  more  important  task  of  considering  the  propriety  of  the 
judgment  itself,  having  just  stated  that  the  grounds  are  two  —  one, 
that  this  was  a  French  ship,  intentionally  employed  in  the  African 
slave  trade;  the  other,  that  she  resisted  by  force  the  King  of  Eng- 
land's commissioned  cruiser. 

Assuming  the  fact,  which  is  indistinctly  proved,  that  there  was 
a  demand,  and  a  resistance  producing  the  deplorable  results  here 
described,  I  think  that  the  natural  order  of  things  com.pels  me  to 
inquire  first,  wiiether  the  party  who  demanded  had  a  right  to  search ; 
for  if  not,  then  not  only  was  the  resistance  to  it  lawful,  but  likewise 
the  very  fact  on  which  the  other  ground  of  condemnation  rests  is 
totally  removed.  For  if  no  right  to  visit  and  search,  then  no  ulterior 
right  of  seizing  and  bringing  in,  and  proceeding  to  adjudication; 
and  it  is  in  the  course  of  those  proceedings  alone,  that  the  facts  are 
produced,  that  she  is  a  French  ship  trading  in  slaves;  and  if  these 
facts  are  made  known  to  the  seizor  by  his  own  unwarranted  acts, 
he  cannot  avail  himself  of  discoveries  thus  unlawfully  produced,  nor 
take  advantage  of  the  consequences  of  his  own  wrong.  Supposing, 
however,  that  it  should  appear  that  he  had  a  right  to  visit  and 
search,  and  therefore  to  avail  himself  of  all  the  information  he  so 
acquired,  the  question  would  then  be,  whether  that  information  has 
established  all  the  necessary  facts?  The  first  is,  that  this  was  a 
French  ship  intentionally  employed  in  the  slave  trade,  which,  I  have 
already  intimated,  appears  to  be  sufficiently  shown.  The  second  is, 
that  such  a  trading  is  a  contravention  of  the  French  law;  for  it  has 
been  repeatedly  admitted  that  the  court,  in  order  to  support  this 
sentence  of  condemnation,  must  have  the  foundation  of  the  trade 
being  prohibited  by  the  law  of  the  country  to  which  the  party 
belongs. 

Upon  the  first  question,  whether  the  right  of  search  exists  in  time 
of  peace,  I  have  to  observe,  that  two  principles  of  public  law  are 
generally  recognized  as  fundamental.  One  is  the  perfect  equality 
and  entire  independence  of  all  distinct  states.     Relative  magnitude 


CHAP.  III.]  LE    "LOUIS."  357 

creates  no  distinction  of  right;  relative  imbecility,  whether  per- 
manent or  casual,  gives  no  additional  right  to  the  more  powerful 
neighbor;  and  any  advantage  seized  upon  that  ground  is  mere  usurpa- 
tion. This  is  the  great  foundation  of  public  law,  which  it  mainly 
concerns  the  peace  of  mankind,  both  in  their  politic  and  private 
capacities,  to  jareserve  inviolate.  The  second  is,  tliat  all  nations 
being  equal,  all  have  an  equal  right  to  the  uninterrupted  use  of  the 
unappropriated  parts  of  the  ocean  for  their  navigation.  In  places 
where  no  local  authority  exists,  where  the  subjects  of  all  states  meet 
upon  a  footing  of  entire  equality  and  independence,  no  one  state, 
or  an}''  one  of  its  subjects,  has  a  right  to  assume  or  exercise  authority 
over  the  subjects  of  another.  I  can  find  no  authority  that  gives  the 
right  of  interruption  to  the  navigation  of  states  in  amity  upon  the 
high  seas,  excepting  that  which  the  rights  of  war  give  to  both  bellig- 
erents against  neutrals.  Tins  right,  incommodious  as  its  exercise 
may  occasionally  be  to  those  who  are  subjected  to  it,  has  been  fully 
established  in  the  legal  practice  of  nations,  having  for  its  foundation 
the  necessities  of  self-defence,  in  preventing  the  enemy  from  being 
supplied  with  the  instruments  of  war,  and  from  having  his  means 
of  annoyance  augmented  by  the  advantages  of  mat'itime  commerce. 
Against  the  property  of  his  enemy  each  belligerent  has  the  extreme 
rights  of  war.  Against  that  of  neutrals,  the  friends  of  both,  each 
has  the  right  of  visitation  and  search,  and  of  pursuing  an  inquiry 
whether  they  are  employed  in  the  service  of  his  enemy,  the  right 
being  subject,  in  almost  all  cases  of  an  inquiry  wrongfully  pursued, 
to  a  compensation  in  costs  and  damages. 

With  professed  pirates  there  is  no  state  of  peace.  They  are  the 
enemies  of  every  country,  and  at  all  times;  and  therefore  are  univer- 
sally subject  to  the  extreme  rights  of  war.  An  ancient  authority, 
the  laws  of  Oleron,  section  45,  composed  at  tlie  time  of  the  Crusades, 
and  as  supposed  by  an  eminent  leader  in  those  expeditions,  our  own 
Richard  I.,  represents  infidels  as  equally  subject  to  those  rights;  but' 
this  rests  partly  upon  the  ground  of  notions  long  ago  exploded,  that 
such  persons  could  have  no  fellowship,  no  peaceful  communion  with 
the  faithful;  and  still  more  upon  the  ground  of  fact  that  they  were 
for  many  centuries  engaged  in  real  hostilities  with  the  Christian 
states.  Another  exploded  practice  was  that  of  princes  granting  pri- 
vate letters  of  marque  against  the  subjects  of  powers  in  amity,  by 
whom  they  had  been  injured,  without  being  able  to  obtain  redress 
from  the  sovereign  or  tribunals  of  that  country.  But  at  present, 
under  the  law,  as  now  generally  understood  and  practised,  no  nation 
can  exercise  a  right  of  visitation  and  search  upon  the  common  and 
unappropriated  parts  of  the  sea,  save  only  on  the  belligerent  claim. 


358  JURISDICTION   ox   THE   HIGH   SEAS.  [PAP.T  I. 

If  it  be  asked  why  the  right  of  search  does  not  exist  in  time  of  peace 
as  well  as  in  war,  the  answer  is  prompt;  that  it  has  not  the  same 
foundation  on  which  alone  it  is  tolerated  in  war,  —  the  necessities  of 
self-defence.  They  introduced  it  in  war;  and  practice  has  estab- 
lished it.  Xo  such  necessities  have  introduced  it  in  time  of  peace, 
and  no  such  practice  has  established  it.  It  is  true,  that  wild  claims 
(alluded  to  in  the  argument)  have  been  occasionally  set  up  by 
nations,  particularly  those  of  Spain  and  Portugal,  in  the  East  and 
West  Indian  seas :  but  these  are  claims  of  a  nature  quite  foreign  to 
the  present  question,  being  claims  not  of  a  general  right  of  visitation 
and  search  upon  the  high  seas  unappropriated,  but  extravagant  claims 
to  the  appropriation  of  particular  seas,  founded  upon  some  grants  of 
a  pretended  authority,  or  upon  some  ancient  exclusive  usurpation. 
Upon  a  principle  much  more  just  in  itself  and  more  temperately 
applied,  maritime  states  have  claimed  a  right  of  visitation  and  in- 
quiry within  those  parts  of  the  ocean  adjoining  to  their  shores,  which 
the  common  courtesy  of  nations  has,  for  their  common  convenience, 
allowed  to  be  considered  as  parts  of  their  dominions  for  various 
domestic  purposes,  and  particularly  for  fiscal  or  defensive  regulations 
more  immediately  affecting  their  safety  and  welfare.  Such  are  our 
hovering  laws,  which  within  certain  limited  distances  more  or  less 
moderately  assigned,  subject  foreign  vessels  to  such  examination. 
This  has  nothing  in  common  with  a  right  of  visitation  and  search 
upon  the  unappropriated  parts  of  the  ocean.  A  recent  Swedish 
claim  of  examination  on  the  high  seas,  though  confined  to  foreign 
ships  bound  to  Swedish  ports,  and  accompanied  in  a  manner  not  very 
consistent  or  intelligible,  with  a  disclaimer  of  all  right  of  visita- 
tion, was  resisted  by  our  government  as  unlawful,  and  was  finally 
withdrawn. 

The  right  of  visitation  being  in  this  present  case  exercised  in  time 
of  peace,  the  question  arises,  how  is  it  to  be  legalized?  And  looking 
to  what  I  have  described  as  the  known  existing  law  of  nations  evi- 
denced by  all  authority  and  all  practice,  it  must  be  upon  the  ground 
that  the  captured  vessel  is  to  be  taken  legally  as  a  pirate,  or  else 
some  new  ground  is  to  be  assumed  on  which  this  right  which  has 
been  distinctly  admitted  not  to  exist  generally  in  time  of  peace  can 
be  supported.  Wherever  it  has  existed,  it  has  existed  upon  the 
ground  of  repelling  injury,  and  as  a  measure  of  self-defence.  No 
practice  that  exists  in  the  world  carries  it  farther. 

It  is  perfectly  clear,  that  this  vessel  cannot  be  deemed  a  pirate 
from  any  want  of  a  national  character  legally  obtained.  She  is  the 
property  not  of  sea  rovers,  but  of  French  acknowledged  domiciled 
subjects.      She  has  a  French  pass,  French  register,  and  all  proper 


CHAP,  in.]  LE   "LOUIS."  359 

documents,  and  is  an  acknowledged  portion  of  the  mercantile  marine 
of  that  country.  If,  therefore,  the  character  of  a  pirate  can  be 
impressed  upon  her,  it  must  be  only  on  the  ground  of  her  occupation 
as  a  slave  trader;  no  other  act  of  piracy  being  imputed.  The  ques- 
tion then  comes  to  this:  —  Can  the  occupation  of  this  French  vessel 
be  legally  deemed  a  piracy,  inferring,  as  it  must  do,  if  it  be  so,  all 
the  paius  and  penalties  of  piracy? 

I  must  remember  that,  in  discussing  this  question,  I  must  consider 
it,  not  according  to  any  private  moral  apprehensions  of  my  own  (if 
I  entertained  tlaem  ever  so  sincerely,  but  as  the  law  considers  it: 
and;  looking  at  the  question  in  that  direction,  I  think  it  requires  no 
labor  of  proof  to  show  that  such  an  occupation  cannot  be  deemed  a 
legal  piracy.  The  very  statute  lately  passed,  which  makes  it  a  trans- 
portable offence  in  any  British  subject  to  be  concerned  in  this 
trade,  affords  a  decisive  proof  that  it  was  not  liable  to  be  considered 
as  a  piracy,  and  a  capital  offence,  as  it  would  be  in  foreigners  as  well 
as  British  subjects,  if  it  was  a  piracy  at  all.  In  truth  it  wants  some 
of  the  distinguishing  features  of  that  offence.  It  is  not  the  act  of 
freebooters,  enemies  of  the  human  race,  renouncing  every  country, 
and  ravaging  every  country  in  its  coasts  and  vessels  indiscriminately, 
and  thereby  creating  an  universal  terror  and  alarm;  but  of  persons 
confining  their  transactions  (reprehensible  as  they  may  be)  to  partic- 
ular countries,  without  exciting  the  slightest  apprehension  in  others. 
It  is  not  the  act  of  persons  insulting  and  assaulting  coasts  and  vessels 
against  the  will  of  the  governments  and  the  course  of  their  laws,  but 
of  persons  resorting  thither  to  carry  on  a  traffic  (as  it  is  there  most  un- 
fortunately deemed),  not  only  recognized  but  invited  by  the  institutions 
and  the  administrations  of  those  barbarous  communities.  But  it  is 
unnecessary  to  pursue  this  topic  further.  It  has  not  been  contended 
in  argument,  that  the  common  case  of  dealing  in  slaves  could  be 
deemed  a  piracy  in  law.  In  all  the  fervor  of  opinion  which  the  agi- 
tation of  all  questions  relating  to  this  practice  has  excited  in  the 
minds  of  many  intelligent  persons  in  this  country,  no  attempt  has 
ever  been  thought  of,  at  least  with  any  visible  effect,  to  submit  any 
such  question  to  the  judgment  of  the  law  by  such  a  prosecution  of 
any  form  instituted  in  any  court :  and  no  lawyer,  T  presume,  could  be 
found  hardy  enough  to  maintain,  that  an  indictment  for  piracy  could 
be  supported  by  the  mere  evidence  of  a  trading  in  slaves.  Be  the 
malignity  of  the  practice  what  it  may,  it  is  not  that  of  piracy,  in 
legal  consideration. 

Piracy  being  excluded,  the  court  has  to  look  for  some  new  and 
peculiar  ground:  but  in  the  first  place  a  new  and  very  extensive 
ground  is  offered  to  it  by  the  suggestion,  which  has  been  strongly 


360  JUKTSDICTION   ON   THE  HIGH   SEAS.  [PxVIlT  I. 

pressed,  that  this  trade,  if  not  the  crime  of  piracy,  is  nevertheless 
crime,  and  that  every  nation,  and  indeed  every  individual  has  not 
only  a  right,  but  a  duty,  to  prevent  in  every  place  the  commission  of 
crime.  It  is  a  sphere  of  duty  sufficiently  large  that  is  thus  opened 
out  to  communities  and  to  their  members.  13ut  to  establish  the  con- 
sequence required,  it  is  first  necessary  to  establish  that  the  right  to 
interpose  by  force  to  prevent  the  commission  of  crime,  commences 
not  upon  the  commencement  of  the  overt  act,  nor  upon  the  evident 
approach  towards  it,  but  on  the  bare  surmise  grounded  on  the  mere 
possibility;  for  unless  it  goes  that  length  it  will  not  support  the 
right  of  forcible  inquiry  and  search.  What  are  the  proximate  cir- 
cumstances which  confer  on  you  the  right  of  intruding  yourself  into 
a  foreign  ship,  over  which  you  have  no  authority  whatever,  or  of 
demanding  the  submission  of  its  crew  to  your  inquiry,  wliether  they 
mean  to  deal  in  the  traffic  of  slaves,  not  in  your  country,  but  in  one 
with  which  you  have  no  connection?  Where  is  the  law  that  has 
defined  those  circumstances  and  created  that  right  under  their  exist- 
ence? Secondly,  it  must  be  shown  that  the  act  imputed  to  the 
parties  is  unquestionably  and  legally  criminal  by  the  universal  law 
of  nations;  for  the  right  of  search  claimed  makes  no  distinctions, 
and  in  truth  can  make  none;  for  till  the  ship  is  searched  it  cannot 
be  known  whether  she  is  a  slave  trader  or  not,  and  whether  she 
belongs  to  a  nation  which  admits  the  act  to  be  crimin-al,  or  to  one 
which  maintains  it  to  be  simply  commercial, — and  I  say  legally 
criminal,  because  neither  this  court  nor  any  other  can  carry  its  pri- 
vate apprehensions,  independent  of  law,  into  its  public  judgments  on 
the  quality  of  actions.  It  must  conform  to  the  judgment  of  the  law 
upon  that  subject;  and  acting  as  a  court  in  the  administration  of 
law,  it  cannot  attribute  criminality  to  an  act  where  the  law  imputes 
nong.  It  must  look  to  the  legal  standard  of  morality;  and  upon  a 
question  of  this  nature,  that  standard  must  be  found  in  the  law  of 
nations  as  fixed  and  evidenced  by  general  and  ancient  and  admitted 
practice,  by  treaties  and  by  the  general  tenor  of  the  laws  and  ordi- 
nances, and  the  formal  transactions  of  civilized  states;  and  looking 
to  those  authorities,  I  find  a  difficulty  in  maintaining  that  the  traffic 
is  legally  criminal. 

Let  me  not  be  misunderstood,  or  misrepresented,  as  a  professed 
apologist  for  this  practice,  when  I  state  facts  which  no  man  can  deny, 
—  that  personal  slavery  arising  out  of  forcible  captivity  is  coeval 
with  the  earliest  periods  of  the  history  of  mankind,  — that  it  is  found 
existing  (and  as  far  as  appears  without  animadversion)  in  the  earliest 
and  most  authentic  records  of  the  human  race,  —  that  it  is  recognized 
by  the  codes  of  the  most  polished  nations  of  antiquity,  —  that  under 


CHAP.  UI.]  LE    "  LOUIS."  361 

the  liglit  of  Christianity  itself,  the  possession  of  persons  so  acquired 
has  been  in  every  civilized  country  invested  with  the  character  of 
property,  and  secured  as  such  by  all  the  protections  of  law,  — that 
solemn  treaties  have  been  framed  and  national  monopolies  eagerly 
sought,  to  facilitate  and  extend  the  commerce  iu  this  asserted 
property,  —  and  all  this,  with  all  the  sanctions  of  law,  public  and 
municipal,  and  without  any  opposition,  except  the  protests  of  a  few 
private  moralists,  little  heard  and  less  attended  to,  in  every  country, 
till  within  these  very  few  years,  in  this  particular  country.  If  the 
matter  rested  here,  I  fear  it  would  have  been  deemed  a  most  extrava- 
gant assumption  in  any  court  of  the  law  of  nations,  to  pronounce  that 
this  practice,  the  tolerated,  the  approved,  the  encouraged  object  of 
law,  ever  since  man  became  subject  to  law,  was  prohibited  by  that 
law,  and  was  legally  criminal.  But  the  matter  does  not  rest  here. 
Within  these  few  years  a  considerable  change  of  opinion  has  taken 
place,  particularly  in  this  country.  Formal  declarations  have  been 
made,  and  laws  enacted  in  reprobation  of  this  practice;  and  pains, 
ably  and  zealously  conducted,  have  been  taken  to  induce  other  coun- 
tries to  follow  the  example;  but  at  present  with  insufficient  effect: 
for  there  are  nations  which  adhere  to  the  practice,  under  all  the 
encouragement  which  their  own  laws  can  give  it.  What  is  the  doc- 
trine of  our  courts  of  the  law  of  nations  relatively  to  them?  Why, 
that  their  practice  is  to  be  respected;  that  their  slaves  if  taken  are 
to  be  restored  to  them;  and  if  not  taken  under  innocent  mistake, 
to  be  restored  with  costs  and  damages.  All  this  surely,  upon  the 
ground  that  such  conduct  on  the  part  of  any  state  is  no  departure 
from  the  law  of  nations ;  because,  if  it  were,  no  such  respect  could  be 
allowed  to  it,  upon  an  exemption  of  its  own  making;  for  no  nation 
can  privilege  itself  to  commit  a  crime  against  the  law  of  nations  by 
a  mere  municipal  regulation  of  its  own.  And  if  our  understanding 
and  administration  of  the  law  of  nations  be,  that  every  nation,  inde- 
pendently of  treaties,  retains  a  legal  right  to  carry  on  this  traffic,  and 
that  the  trade  carried  on  under  that  authority  is  to  be  respected  by 
all  tribunals,  foreign  as  well  as  domestic,  it  is  not  easy  to  find  any 
consistent  grounds  on  which  to  maintain  that  the  traffic,  according  to 
our  views  of  that  law,  is  criminal. 

Against  the  subjects  of  countries  which  have  issued  declarations 
hostile  to  the  trade,  the  courts  have  not  unfairly  applied  the  argu- 
■mentum  ad  homines.  At  the  same  time,  it  is  impossible  not  to  feel 
(and  with  concern)  that  if  the  real  understanding  of  the  law,  both  in 
this  country  and  others,  is  to  be  collected  from  public  acts  as  well 
as  from  public  declarations,  it  will  at  least  be  difficult  to  determine 
with  certainty  and  precision  what  that  understanding  really  is;  some 


362  JURISDICTION   ox   THE   HIGH    SEAS.  [PAET  I. 

parts  of  their  systems  looking  one  way,  and  some  another.  The 
notorious  fact  is,  that  in  the  dominions  of  this  country  and  others, 
many  thousands  of  persons  are  held  as  legal  property,  they  and  their 
posterity,  upon  no  other  original  title  than  that  which  I  am  now 
called  upon  to  pronounce  a  crime,  —  every  one  of  these  instances 
attended  with  all  the  aggravation  that  appertains  to  the  long  contin- 
uation of  crime,  if  crime  it  be;  and  yet  protected  by  law,  with  all 
the  securities  that  can  be  given  to  property  in  its  most  respected 
forms.  Recent  treaties  with  foreign  powers  stipulate  for  a  permitted 
continuance  of  this  traffic  to  them  for  a  course  of  years,  and  in  exten- 
sive districts,  and  without  any  limitation  of  the  numbers  they  may 
export,  — that  is,  according  to  the  argument  that  has  been  held,  con- 
tracts for  the  commission  of  crime,  without  stint,  throughout  those 
districts,  and  during  those  periods  of  time!  In  such  a  state  of  law 
and  fact,  at  home  and  abroad,  it  is  more  than  difficult  to  arrive  at 
the  conclusion,  and  for  this  court,  representing  this  country,  to 
notify  such  conclusion  to  foreign  parties,  that,  in  its  clear  and  con- 
sistent judgment  of  the  law  of  nations  upon  this  traffic,  it  is  a  gross 
violation  of  that  law. 

Much  stress  is  laid  upon  a  solemn  declaration  of  ver}^  eminent  per- 
sons assembled  in  Congress,  whose  rank,  high  as  it  is,  is  by  no  means 
the  most  respectable  foundation  of  tlie  weight  of  their  opinion  that 
this  traffic  is  contrary  to  all  religion  and  morality.  Great  as  the 
revereuce  due  to  such  authorities  may  be,  they  cannot,  I  think,  be 
admitted  to  have  the  force  of  overruling  the  established  course  of  the 
general  law  of  nations.  Suppose  an  equal  number  of  foreign  per- 
sonages, equal  in  rank  and  station,  and,  if  such  could  be.  found,  in 
talents,  were  to  declare  that  the  right  of  search  in  time  of  war,  as 
exercised  on  neutrals,  was  contrary  to  all  reason  and  justice;  this 
country,  I  presume,  would  not  attribute  any  such  effect  to  such  opin- 
ions so  delivered,  even  although  they  were  not  accompanied,  as  this 
declaration  is,  with  any  contemporary  acts,  which  evinced  that  they 
were  considered  by  the  parties  themselves  rather  as  speculative  opin- 
ions than  as  drawing  after  them  the  obligation  of  a  public  and 
practical  conformity;  for  otherwise  some  difficulty  might  occur  in 
reconciling  the  stipulated  continuation  of  this  traffic  contained  in 
some  treaties  framed  at  no  great  distance  of  time,  with  the  descrip- 
tion of  its  nature  and  quality  as  represented  in  this  declaration. 

It  is  next  said  that  every  country  has  a  right  to  enforce  its  own 
navigation  laws;  and  so  it  certainly  has,  so  far  as  it  does  not  inter- 
fere with  the  rights  of  others.  It  has  a  right  to  see  that  its  own 
vessels  are  duly  navigated,  but  it  has  no  right  in  consequence  to 
visit  and  search  all  the  apparent  vessels  of  other  countries  on  the 


CHAP.  III.]  LE    "  LOUIS."  363 

high  seas,  in  order  to  institute  an  inquiry  whether  they  arc  not  in 
truth  British  vessels  violating  Uritish  laws.  No  such  riglit  has  ever 
been  claimed,  nor  can  it  be  exercised  without  the  oppression  of 
interru[)ting  and  harassing  the  real  and  lawful  navigation  of  other 
countries;  for  tlie  right  of  search  when  it  exists  at  all,  is  universal, 
and  will  extend  to  vessels  of  all  countries,  whether  they  tolerate  the 
slave  trade  or  not;  and  whether  the  vessels  are  employed  in  slave 
trading  or  in  any  other  traffic.  It  is  no  objection  to  say  that  British 
ships  may  thus  by  disguise  elude  the  obligations  of  British  law. 
The  answer  of  the  foreigner  is  ready,  that  you  have  no  right  to  pro- 
vide against  that  inconvenience  by  imposing  a  burden  upon  his  navi- 
gation. If  even  the  question  were  reduced  to  this,  that  either  all 
British  ships  might  fraudulently  escape,  or  all  foreign  ships  be 
injuriously  harassed,  Great  Britain  could  not  claim  the  option  to 
embrace  the  latter  branch  of  the  alternative.  When  you  complain 
that  the  regulation  cannot  be  enforced  without  the  exercise  of  such 
a  right,  the  answer  again  is,  that  you  ought  to  not  make  regulations 
which  you  cannot  enforce  without  trespassing  on  the  rights  of  others. 
If  it  were  a  matter  by  which  your  own  safety  was  affected,  the  neces- 
sities of  self-defence  would  fully  justify ;  but  in  a  matter  in  which 
your  own  safety  is  in  no  degree  concerned,  you  have  no  right  to  pre- 
vent a  suspected  injustice  towards  another,  by  committing  an  actual 
injustice  of  your  own. 

The  next  argument  is,  that  the  legislature  must  have  contemplated 
the  exercise  of  this  right  in  time  of  peace;  otherwise  they  have  left 
the  remedy  incomplete,  and  peace  in  Europe  will  be  war  in  Africa. 
The  legislature  must  be  understood  to  have  contemplated  all  that  was 
within  its  power,  and  no  more.  It  provided  for  the  existing  occa- 
sion, and  left  to  future  wisdom  to  provide  for  future  times.  Nothing 
can  be  more  clear,  than  that  it  was  so  understood  by  the  British 
Government;  for  the  project  of  the  treaty  proposed  by  Great  Britain 
to  France,  in  1815,  is,  "  that  permission  should  be  reciprocally  given 
by  each  nation  to  search  and  bring  in  the  ships  of  each  other;  "  and 
when  the  permission  of  neutrals  to  have  their  ships  searched  is  asked 
at  the  commencement  of  a  war,  it  may  then  be  time  enough  to  admit 
that  the  right  stands  on  exactly  the  same  footing  in  time  of  war  and 
in  time  of  peace.  The  fact  turned  out  to  be,  that  such  permission 
was  actually  refused  by  France,  upon  the  express  ground  that  she 
would  not  tolerate  any  maritime  police  to  be  exercised  on  her  sub- 
jects, but  by  herself.  Nor  can  it  be  matter  of  just  surprise  or 
resentment,  that  that  people  should  be  willing  to  retain,  what  every 
independent  nation  must  be  averse  to  part  with,  the  exclusive  right 
of  executing  their  own  laws. 


364  JURISDICTION    ON   THE   HIGH   SEAS.  [PART  I. 

It  is  pressed  as  a  difficulty,  what  is  to  be  done,  if  a  French  ship 
laden  with  slaves  for  a  French  port  is  brought  in?  I  answer,  with- 
out hesitation,  restore  the  possession  which  has  been  unlawfully 
divested  —  rescind  the  illegal  act  done  by  your  own  subject;  and 
leave  the  foreigner  to  the  justice  of  his  own  country.  What  evil  fol- 
lows? If  the  laws  of  France  do  not  prohibit,  you  admit  that  condem- 
nation cannot  take  place  in  a  British  court.  But  if  the  law  of  France 
be  what  you  contend,  what  would  have  followed  upon  its  arrival  at 
Martinique,  the  port  whither  it  was  bound?  That  all  the  penalties 
of  the  French  law  would  have  been  immediately  thundered  upon  it. 
If  your  case  be  true,  there  will  be  no  failure  of  justice.  Why  is  the 
British  judge  to  intrude  himself  in  subsidluiii  juris,  when  everything 
requisite  will  be  performed  in  the  French  court  in  a  legal  and  effect- 
ual manner?  Why  is  the  British  judge,  professing,  as  he  does,  to 
apply  the  French  law,  to  assume  cognizance  for  the  mere  purpose  of 
directing  that  the  penalties  shall  go  to  the  British  Crown  and  its 
subjects,  which  that  law  has  appropriated  to  the  French  Crown  and 
its  subjects,  thereby  combining,  in  one  act  of  this  usurped  autlior- 
ity,  an  aggression  upon  French  property  as  well  as  upon  French 
jurisdiction? 

It  is  said,  and  with  just  concern,  that  if  not  permitted  in  time  of 
peace  it  will  be  extremely  difficult  to  suppress  the  traffic.  It  will  be 
so,  and  no  man  can  deny,  that  the  suppression,  however  desirable, 
and  however  sought,  is  attended  with  enormous  difficulties;  difficul- 
ties which  have  baffled  the  most  zealous  endeavors  of  many  years. 
To  every  man  it  must  have  been  evident  that  without  a  general  and 
sincere  concurrence  of  all  maritime  states  in  the  principle  and  in  the 
proper  modes  of  pursuing  it,  comparatively  but  little  of  positive  good 
could  be  acquired;  so  far  at  least,  as  the  interests  of  the  victims  of 
this  commerce  were  concerned  in  it;  and  to  every  man  who  looks  to 
the  rival  claims  of  these  states,  to  their  established  habit  of  trades, 
to  their  real  or  pretended  wants,  to  their  diiTerent  modes  of  thinking, 
and  to  their  real  mode  of  acting  upon  this  particular  subject,  it  must 
be  equally  evident  that  such  a  concurrence  was  matter  of  very  difficult 
attainment.  But  the  diificulty  of  the  attainment  will  not  legalize 
measures  that  are  otherwise  illegal.  To  press  forward  to  a  great 
principle  by  breaking  through  every  other  great  principle  that  stands 
in  the  way  of  its  establishment;  to  force  the  way  to  tlie  liberation  of 
Africa  by  trampling  on  the  independence  of  other  states  in  Europe; 
in  short,  to  procure  an  eminent  good  by  means  that  are  unlawful,  is 
as  little  consonant  to  private  morality  as  to  public  justice.  Obtain 
the  concurrence  of  other  nations,  if  you  can,  by  application,  by 
remonstrance,  by  example,  by  every  peaceable  instrument  which  man 


CHAP.  III.]  LE    "  LOUIS."  365 

can  employ  to  attract  the  consent  of  man.  T>ut  a  nation  is  not  justi- 
fied in  assuming  rights  that  do  not  belong  to  her,  merely  because  she 
means  to  apply  them  to  a  laudable  purpose;  nor  in  setting  out  upon 
a  moral  crusade  of  converting  other  nations  by  acts  of  unlawful  force. 
Nor  is  it  to  be  argued,  that  because  other  nations  approve  the  ulti- 
mate purpose,  they  must  therefore  submit  to  every  measure  which 
any  one  state  or  its  subjects  may  inconsiderately  adopt  for  its  attain- 
ment. In  this  very  case  nothing  can  be  clearer  than  that  the  only 
French  law  produced  is  in  direct  contradiction  to  such  a  notion ;  be- 
cause approving  as  it  does  (though  to  a  very  limited  extent)  the 
abolition,  it  nevertheless  reserves  to  its  own  authorities  the  cogni- 
zance of  each  cause  and  the  appropriation  of  the  penalties. 

If  I  felt  it  necessary  to  press  the  consideration  further,  it  would 
be  by  stating  the  gigantic  mischiefs  which  such  a  claim  is  likely  to 
produce.  It  is  no  secret,  particularly  in  this  place,  that  the  right 
of  search  in  time  of  war,  though  unquestionable,  is  not  submitted  to 
without  complaints  loud  and  bitter,  in  spite  of  all  the  modifications 
that  can  be  applied  to  it.  If  this  right  of  war  is  imported  into  peace 
by  convention,  it  will  be  for  the  prudence  of  states  to  regulate  by 
that  convention  the  exercise  of  the  right  with  all  the  softenings  of 
which  it  is  capable.  Treaties,  however,  it  must  be  remembered,  are 
perishable  things,  and  their  obligations  are  dissipated  by  the  first 
hostility.  The  covenants,  however  solemn,  for  the  abolition  of  the 
trade,  or  for  the  exercise  of  modes  of  prevention,  coexist  only  with 
the  relations  of  amity  among  the  confederate  states.  At  the  same 
time  it  may  be  hoped,  that  so  long  as  the  treaties  do  exist,  and  their 
obligations  are  sincerely  and  reciprocally  respected,  the  exercise  of  a 
right,  which  pro  faufo  converts  a  state  of  peace  into  a  state  of  war, 
may  be  so  conducted  as  not  to  excite  just  irritation.  But  if  it  be 
assumed  by  force,  and  left  at  large  to  operate  reciprocally  upon  the 
ships  of  every  state  (for  it  must  be  a  right  of  all  against  all),  without 
any  other  limits  as  to  time,  place,  or  mode  of  inquiry  than  such  as 
the  prudence  of  particular  states,  or  their  individual  subjects,  may 
impose,  I  leave  the  tragedy  contained  in  this  case  to  illustrate  the 
effects  that  are  likely  to  arise  in  the  very  first  stages  of  the  process, 
without  adding  to  the  account  what  must  be  considered  as  a  most 
awful  part  of  it,  the  perpetual  irritation  and  the  universal  hostility 
which  are  likely  to  ensue. 

Let  it  however  be  taken,  for  the  present,  that  the  whole  of  these 
premises,  tending  to  show  that  no  right  of  search  upon  the  high  seas 
exists  in  time  of  peace,  are  either  unsound  in  themselves,  or  are 
strained  to  produce  a  conclusion  that  is  so;  I  proceed  to  inquire  how 
far  the  French  law  had  actually  abolished  the  slave  trade  at  the  time 


366  JURISDICTION   ON    THE   HIGH   SEAS.  [PART  I. 

this  adventure  occurred;  having  already  observed  that  if  it  were  not, 
the  sentence  of  condemnation  was  admitted  to  be  unmaintainable, 
and  tliat  no  proof  whatever  of  any  French  law  was  produced  in  the 
court  below  either  by  the  exhibition  of  the  law  itself  or  by  the  infor- 
mation received  from  foreign  professors  and  practisers  of  that  law,  or 
by  anything  else  than  the  mere  assertion  of  the  prosecutor  in  the 
libel.  What  proof  is  offered  is  brought  in  upon  the  appeal,  and  the 
question  depends  on  its  sufficiency. 

The  actual  state  of  the  matter,  as  I  collect  it  from  these  documents, 
Appendix  (H),  is  this:  On  the  27th  of  July,  1815,  the  British 
minister  at  Paris  writes  a  note  to  Prince  Talleyrand,  then  minister 
to  the  King  of  France,  inclosing  a  protocol  of  the  fifteenth  confer- 
ence, and  expressing  a  desire,  on  the  part  of  his  court,  to  be  in- 
formed, whether,  under  the  law  of  France,  as  it  then  stood,  it  was  pro- 
hibited to  French  subjects  to  carry  on  the  slave  trade.  Appendix  (I). 
The  French  minister  informs  him,  in  answer,  on  the  30th  of  July, 
that  the  law  of  the  Usurper  on  that  subject  was  null  and  void  (as 
were  all  his  decrees) ;  but  that  his  most  Christian  Majesty  had  issued 
directions,  that  on  the  part  of  France  "  the  traffic  should  cease  from 
the  present  time  everywhere  and  forever."  In  what  form  these 
directions  were  issued,  or  to  whom  addressed,  does  not  appear,  but 
upon  such  authority  it  must  be  presumed  that  they  were  actually 
issued.  It  is,  however,  no  violation  of  the  respect  due  to  that 
authority  to  inquire  what  was  the  result  or  effect  of  those  directions 
so  given.  What  followed  in  obedience  to  them  in  any  public  and 
binding  form?  And  I  fear  I  am  compelled  to  say  that  nothing  of  the 
kind  followed,  and  that  the  directions  must  have  slept  in  tlie  port- 
folio of  the  office  to  which  they  were  addressed;  for  it  is,  I  think, 
impossible  that  if  any  public  and  authoritative  ordinance  had  fol- 
lowed, it  could  have  escaped  the  sleepless  attention  of  many  persons 
in  our  own  country  to  all  public  foreign  proceedings  upon  this  inter- 
esting subject.  Still  less  would  it  have  escaped  the  notice  of  the 
British  resident  minister,  who  at  the  distance  of  a  year  and  a  half 
is  compelled  on  the  part  of  his  own  court  to  express  a  curiosity  to 
know  what  laws,  ordinances,  instructions,  and  other  public  and  osten- 
sible acts  had  passed  for  the  abolition  of  the  slave  trade. 

On  the  30th  of  November  in  the  same  year,  the  additional  article 
of  the  definite  treaty.  Appendix  (N),  a  very  solemn  instrument  most 
undoubtedly,  is  formally  and  publicly  executed,  and  it  is  in  these 
terms:  "The  high  contracting  parties,  sincerely  desiring  to  give 
effect  to  the  measures  on  which  they  deliberated  at  the  Congress  of 
Vienna,  for  the  complete  and  universal  abolition  of  the  slave  trade, 
and  having  each  in  their   respective  dominions  prohibited,  without 


CHAP.  III.]  LE    "  LOUIS."  367 

restriction,  their  colonies  and  subjects,  from  taking  any  part  what- 
ever in  this  traffic,  engage  to  renew,  conjointly,  their  efforts,  with  a 
view  to  ensure  final  success  to  the  principles  ■which  the\'  proclaimed 
in  the  declaration  of  the  8th  February,  1815,  and  to  concert,  without 
loss  of  time,  by  their  minister  at  the  court  of  London,  the  most 
effectual  measures  for  the  entire  and  definitive  abolition  of  a  traffic 
so  odious  and  so  highly  reproved  by  the  laws  of  religion  and  nature." 

Kow  what  are  the  effects  of  this  treaty?  According  to  the  view  I 
take  of  it  they  are  two,  and  two  only;  one  declaratory  of  a  fact,  the 
other,  promissory  of  future  measures.  It  is  to  be  observed  that  the 
treaty  itself  does  not  abolish  the  slave  trade,  it  does  not  inform 
the  subjects  that  the  trade  is  hereby  abolished,  and  that  by  vir- 
tue of  the  prohibitions  therein  contained,  its  subject  shall  not  in 
future  carry  on  that  trade;  but  the  contracting  powers  mutually 
inform  each  other  of  the  fact,  that  they  have  in  their  respective 
dominions  abolished  the  slave  trade,  without  stating  at  all  the  mode 
in  which  that  abolition  had  taken  place.  It  next  engages  to  take 
future  measures  for  the  universal  abolition.  That,  with  respect  to 
both  the  declaratory  and  promissory  parts.  Great  Britain  has  acted 
with  the  ojitbna  fides  is  known  to  the  whole  world,  which  has  wit- 
nessed its  domestic  laws  as  well  as  its  foreign  negotiations. 

I  am  very  far  from  intimating  that  the  government  of  this  country 
did  not  act  with  perfect  propriety  in  accepting  the  assurance  that  the 
French  Government  had  actually  abolished  the  slave  trade,  as  a  suffi- 
cient proof  of  the  fact;  but  the  fact  is  now  denied  by  a  person  who 
has  a  right  to  deny  it;  for  though  a  French  subject,  he  is  not  bound 
to  acknowledge  the  existence  of  any  law  that  has  not  publicly 
appeared,  and  the  other  party  having  taken  upon  himself  the  burden 
of  proving  it  in  the  course  of  a  legal  inquiry,  the  court  is  compelled 
to  demand  and  expect  the  ordinary  evidence  of  such  a  disputed  fact. 

It  was  not  till  the  loth  of  January,  Appendix  (E),  in  the  present 
year  that  the  British  resident  minister  applies  for  the  communication 
I  have  described,  of  all  laws,  instructions,  ordonnances,  and  so  on; 
he  receives  in  return,  what  is  delivered  by  the  French  minister  as  the 
ordonnanee,  bearing  date  only  one  week  before  the  requested  com- 
munication, namely,  the  8th  of  January,  Appendix  (P).  It  has  been 
asserted,  in  argument,  that  no  such  ordonnanee  has  j'st  up  to  this 
very  hour  even  appeared  in  any  printed  or  public  form,  however 
much  it  might  import  both  French  subjects  and  the  subjects  of  for- 
eign states  so  to  receive  it;  how  that  fact  may  be  I  cannot  say;  but 
I  observe  it  appears  before  me  in  a  manuscript  form,  and  by  inquiry 
at  the  Secretary  of  State's  office  I  find  it  exists  there  in  no  other 
plight  or  condition. 


368  JURISDICTION   ox   THE    HIGH    SEAS.  [PAET  I. 

In  transmitting  this  to  the  British  Government,  the  British  min- 
ister observes,  it  is  not  the  document  he  had  reason  to  expect,  and 
certainly  with  much  propriety;  for  how  does  the  document  answer 
his  requisition?  His  requisition  is  for  all  laws,  ordonnances,  in- 
structions, and  so  forth.  How  does  this,  a  simple  ordonnance,  pro- 
fessing to  have  passed  only  a  week  before,  realize  the  assurance 
given  on  the  30th  of  July,  1815,  that  the  traffic  "should  cease  from 
the  present  time  everywhere  and  forever  "  ?  Or  how  does  this  realize 
the  promise  made  in  November,  that  measures  should  be  taken  with- 
out loss  of  time  to  prohibit  not  only  French  colonies  but  French  sub- 
jects likewise  from  taking  any  part  whatever  in  this  traffic?  AYhat 
is  this  regulation  in  substance?  Why  it  is  a  mere  prospective  colo- 
nial regulation,  prohibiting  the  importation  of  slaves  into  the  French 
colonies  from  the  Stli  of  January,  1817?  Consistently  with  this 
declaration,  even  if  it  does  exist  in  the  form  and  with  the  force  of 
a  law,  French  subjects  may  be  yet  the  common  carriers  of  slaves  to 
any  foreign  settlement  that  will  admit  them,  and  ma^^  devote  their 
capital  and  their  industry,  unmolested  by  law,  to  the  supply  of  any 
such  markets. 

Supposing,  however,  the  regulations  to  contain  the  fullest  and  most 
entire  fulfilment  of  the  engagement  of  France,  both  in  time  and  in 
substance,  what  possible  application  can  a  prospective  regulation  of 
January,  1817,  have  to  a  transaction  of  ]March  in  1816? 

The  counsel,  fully  sensible  of  the  difficulty,  have  been  obliged  to 
resort,  first,  to  the  conduct  of  the  master,  whose  studious  concealment 
of  his  transactions  argues,  as  they  contend,  his  consciousness  of 
their  illegality.  That,  from  the  fervor  which  the  agitation  of  such 
questions  had  excited,  anything  and  everything  might  be  feared  in 
that  quarter  of  the  globe  is  not  at  all  extraordinary;  but  the  conceal- 
ment of  the  master,  if  even  much  greater  than  it  is,  would  not,  under 
those  apprehensions,  or  indeed  under  any  apprehensions,  prove  the 
existence  of  a  law  that  did  not  exist.  They  are  next  driven  to  the 
supposition  of  intermediate  edicts,  though  the  French  minister  has 
not  thought  fit  to  produce  them.  I  must  observe,  first,  that  the  pro- 
hibition of  the  introduction  of  slaves  into  her  colonies  would  be  the 
first  step  that  would  be  taken,  or,  as  they  express  it,  the  initiative  of 
any  course  of  regulations;  and,  secondly,  that  nobody  is  now  to  be 
told  that  a  modern  edict  which  does  not  appear,  cannot  be  presumed; 
and  that  no  penal  law  of  any  state  can  bind  the  conduct  of  its  sub- 
jects, unless  it  is  conveyed  to  their  attention  in  a  way  which  excludes 
the  possibility  of  honest  ignorance.  Surely,  there  is  no  case  in  which 
the  maxim,  that  what  does  not  appear  is  to  be  treated  in  the  same 
way  as  if  it  did  not  exist,  more  fully  and  forcibly  applies  than  one 


CHAP.  III.]  LE    "LOUIS."  369 

in  which  they  have  been  demanded  by  the  person  who  had  a  right  to 
demand  tliem,  and  have  been  withheld  by  those  who  had  a  duty  to 
produce  them.  The  very  production  of  a  law  professing  to  be  enacted 
in  the  beginning  of  1817,  is  a  satisfactory  proof  that  no  such  law 
existed  in  181G,  the  year  of  this  transaction. 

It  would  be  going  further  than  the  necessities  of  the  present  case 
require  me  to  do,  to  say  that  the  evidence  now  offered  does  not  enable 
me  to  assert  that  the  French  law  prohibited  its  subjects  from  taking 
any  part  whatever  in  this  traffic.  It  is  enough  to  say,  that  no  law 
is  shown,  which  can  have  any  bearing  upon  this  transaction. .  The 
Usurper's  law  was  dead-born;  and  if  any  law  existed  at  the  time  of 
this  transaction,  it  must  be  that  which  permitted  the  traffic  for  five 
years;  for  the  authority  of. that  law  could  not  be  destroyed  by  the 
usurpation;  but  whether  it  had  existence  or  not,  the  seizor  has 
entirely  failed  in  the  task  he  has  undertaken  of  proving  the  existence 
of  a  prohibitory  law,  enacted  by  the  legal  government,  which  can 
be  applied  to  the  present  transaction,  and  therefore  upon  that  ground, 
as  well  as  upon  the  other,  I  think  myself  called  upon  to  reverse  this 
judgment. 

Upon  the  matter  of  costs  and  damages  that  have  been  prayed,  I 
must  observe  that  it  is  the  first  case  of  the  kind,  and  that  the  ques- 
tion itself  is  jjrimce  impresslonis,  and  that  upon  both  grounds  it  is 
not  the  inclination  of  the  court  to  inflict  such  a  censure.  If  a  second 
case  should  occur,  it  will  require  (in  my  judgment  till  corrected),  and 
undoubtedly  shall  receive,  a  different  consideration, 

1  For  other  cases  upon  the  subject  of  the  slave  trade,  see  The  Am^die,  1810, 
1  Act.  240  (per  Sir  Wm.  Grant);  The  Fortuna,  1811,  1  Dod.  81;  ^/adrazo  v.  Willes, 
1820,  3  B.  &  Aid.  353;  The  Antelope,  1825,  10  Wlieat.  66.  See  also  Dana'  Wlieaton, 
notes  83  (193-195),  84  (l!J6-200),  85  (201-203).  —  Ed. 


24 


CHAPTER  IV. 
NATIONALITY. 


Section  20.  —  Indelible  Allegiance  —  Expatriation. 


THE   CASE   OF  ^NEAS   MACDONALD,   ALIAS   AJSTGUS 
]\[ACDOXALD,   1747. 

(Foster's  Crown  Law,  59.) 

In  the  year  1747,  a  bill  of  indictment  was  found  against  him,  under 
the  special  commission  in  Surry,  for  tlie  share  he  liad  in  the  late  rebel- 
lion. The  indictment  ran  iu  the  same  form  as  those  against  the  other 
prisoners,  without  any  averment  that  he  was  in  custody  before  the 
first  of  January,  1746.  But  the  counsel  for  the  Crown  were  aware  of 
the  exception  taken  in  the  case  of  ]Mr.  Townly  and  others,  and  that 
since  the  whole  proceeding  against  the  prisoner  was  subsequent  to 
January,  1746,  the  answer  then  given  would  net  serve  the  present  case. 
That  bill  was  therefore  withdrawn  before  the  prisoner  pleaded  to  it ; 
and  a  new  bill  concluding  with  an  averment  that  he  was  apprehended 
and  in  custody  before  the  first  of  January,  1746,  was  preferred  and 
found  against  him.  On  that  bill  he  was  arraigned  in  July,  1747,  and 
his  trial  came  on  the  10th  of  December  following. 

The  overt  acts  charged  in  the  indictment  were  sufiiciently  proved  : 
and  also  that  the  prisoner  was  apprehended  and  in  custody  before  the 
first  of  January,  1746. 

The  counsel  for  the  prisoner  insisted  that  he  was  born  in  the 
dominions  of  the  French  King,  and  on  this  point  they  put  his  defence. 

But  apprehending  that  the  weight  of  the  evidence  might  be  against 
them,  as  indeed  it  was,  with  regard  to  the  place  of  the  prisoner's  birth, 
they  endeavored  to  captivate  the  jury  and  bystanders,  by  representing 
the  great  hardship  of  a  prosecution  of  this  kind  against  a  person,  who, 
admitting  him  to  be  a  native  of  Great  Britain,  had  received  his  educa- 
tion from  his  early  infancy  in  France  ;  and  spent  his  riper  j^ears  in  a 
profitable  employment  in  that  kingdom,  where  all  his  hopes  centred  : 
and  speaking  of  the  doctrine  of  natural  allegiance,  they  represented  it 
as  a  slavish  principle,  not  likely  to  prevail  in  these  times;  especially 
as  it  seemed  to  derogate  from  the  principles  of  the  revolution. 


CHAP.  IV.]   -ENEAS  MACDONALD,  ALIAS  ANGUS  MACDONALD.  371 

Here  the  court  interposed  ;  and  declared,  that  the  mentioning  the 
case  of  the  revolution  as  a  case  any  way  similar  to  that  of  the  prisoner, 
supjiosing  him  to  have  been  born  in  Great  Britain,  can  serve  no  pur- 
pose but  to  bring  an  odium  on  that  great  and  glorious  transaction. 
It  never  was  doubted  that  a  subject-born,  taking  a  commission  from 
a  foreign  prince  and  committing  high  treason,  may  be  punished  as 
a  subject  for  that  treason,  notwithstanding  his  foreign  commission. 
It  was  so  ruled  in  Dr.  Storey's  case  :  and  that  case  was  never  yet  I  \ 
denied  to  be  law.  It  is  not  in  the  power  of  any  private  subject  to 
shake  off  his  allegiance,  and  to  transfer  it  to  a  foreign  prince.  Nor  is  it 
in  the  power  of  any  foreign  prince  by  naturalizing  or  employing  a 
subject  of  Great  Britain,  to  dissolve  the  bond  of  allegiance  between 
that  subject  and  the  Crown. 

However,  as  the  prisoner's  counsel  had  mentioned  his  French  com- 
mission as  a  circumstance  tending  in  their  opinion  to  prove  his  birth 
in  France,  the  court  permitted  it  to  be  read,  the  Attorney-General  con- 
senting. It  was  dated,  the  first  of  June,  1745,  and  appointed  the  pris- 
oner commissary  of  the  troops  of  France,  which  were  then  intended  to 
embark  for  Scotland. 

The  court,  with  the  consent  of  the  counsel  for  the  Crown,  permitted 
the  cartel  between  France  and  Great  Britain  for  the  exchange  or 
ransom  of  prisoners  likewise  to  be  read  ;  and  observed,  that  as  it  relateth 
barely  to  the  exchange  or  ransom  of  prisoners  of  war,  it  can  never 
extend  to  the  case  of  the  prisoner  at  the  bar,  supposing  him  to  be  a 
subject-born  ;  because  by  the  laws  of  all  nations,  subjects  taken  in 
arms  against  their  lawful  prince,  are  not  considered  as  j^risoners  of 
war,  but  as  rebels  ;  and  are  liable  to  the  punishment  ordinarily  in- 
flicted on  rebels. 

Lord  Chief  Justice  Lee,  in  his  direction  to  the  jur}',  told  them,  that 
the  overt  acts  laid  in  the  indictment  being  fully  proved,  and  not  denied 
by  the  prisoner,  or  rather  admitted  by  his  defence,  the  only  fact  they 
had  to  try  was,  whether  he  was  a  native  of  Great  Britain ;  if  so,  he  must 
be  found  guilty.  And  as  to  that  point,  he  said  the  presumption  in  all 
cases  of  this  kind  is  against  the  prisoner ;  and  the  proof  of  his  birth 
out  of  the  King's  dominions,  where  the  prisoner  putteth  his  defence  on 
that  issue,  lieth  upon  him.  But  whether  the  evidence  that  had  been 
given  in  the  present  case  (which  he  summed  up  very  minutel}-),  did  or 
did  not  amount  to  such  proof,  he  left  to  their  consideration. 

The  jury  found  him  guilty,  but  recommended  him  to  mercy.  He 
received  sentence  of  death  as  in  cases  of  high  treason ;  but  was  after- 
ward pardoned  upon  the  conditions  mentioned  below, ^ 

1  Banishment.  —  Ed. 


372  NATIONALITY.  [PART  I. 

WILLIAMS'  CASE. 
UxiTED  States  District  Court,  District  of  Connecticut,  1797. 

(  Wharton's  State  Trials,  652.)  ^ 

On  the  trial,  it  was  admitted  on  the  part  of  Williams,  that  he  had 
committed  the  facts  alleged  against  him  in  the  indictment,  but,  in 
his  defence,  he  offered  to  prove  that,  in  the  year  1792,  he  received 
from  the  Consul-General  of  the  French  Eepublic,  a  warrant,  appoint- 
ing him  third  lieutenant  on  board  the  Jiijjiter,  a  French  seventy-four 
gun  ship;  that,  pursuant  to  this  appointment,  he  went  on  board  the 
Jupiter,  and  took  the  command  to  which  he  was  appointed;  that  the 
Jupiter  soon  after  sailed  for  France,  and  arrived  at  Rochefort,  in 
France,  in  the  autumn  of  the  same  year;  that  at  Rochefort  he  was 
duly  naturalized  in  the  various  Bureaux  in  that  place,  the  same 
autumn,  renouncing  his  allegiance  to  all  other  countries,  particularly 
to  America,  and  taking  an  oath  of  allegiance  to  the  Republic  of 
France,  all  according  to  the  laws  of  said  republic;  that  immediately 
after  said  naturalization  he  was  duly  commissioned  by  the  Republic 
of  France  appointing  him  a  second  lieutenant  on  board  a  French 
frigate  called  the  Charont ;  and  that  before  the  ratification  of  the 
treat}'  of  amity  and  commerce  between  the  United  States  and  Great 
Britain,  he  was  duly  commissioned  by  the  French  Republic  a  second 
lieutenant  on  board  a  seventy-four  gun  ship,  in  the  service  of  said 
republic;  and  that  he  has  ever  continued  under  the  government  of  the 
French  Republic  down  to  the  present  time,  and  the  most  of  said  time 
actually  resident  in  the  dominions  of  the  French  Republic;  that  dur- 
ing said  period  he  was  not  resident  in  the  United  States  more  than 
six  months,  which  was  in  the  year  1796,  when  he  came  to  this  country 
for  the  purpose  merely  of  visiting  his  relations  and  friends;  that,  for 
about  three  years  past,  he  has  been  domiciliated  in  the  island  of 
Guadaloupe,  within  the  dominions  of  the  French  Republic,  and  has 
made  that  place  his  fixed  habitation,  without  any  design  of  again 
returning  to  the  United  States  for  permanent  residence.  The  attor- 
ney for  the  district  conceded  the  above-mentioned  statement  to  be 
true;  but  objected  that  it  ought  not  to  be  admitted  as  evidence  to  the 
jury,  because  it  could  have  no  operation  in  law  to  justify  the  prisoner 
in  committing  the  facts  alleged  against  him  in  the  indictment.     This 

1  Reported  less  fully  in  2  Crancli,  83,  note  a.  —  Ed. 


CHAP.  IV.]  WILLIAMS'    CASE.  373 

question  was  argued  on  both  sides  by  j\[r.  Pierpont  Edwards  for  the 
United  States,  and  ^Iv.  David  Daggett  for  the  prisoner. 

Judge  Law  (district  judge)  expressed  doubts  as  to  the  legal  opera- 
tion  of  the  evidence;  and  gave  it  as  liis  opinion,  that  the  evidence, 
and  the  operation  of  law  thereon,  be  left  to  the  consideration  of  the 

Judge  Ellsworth,  the  Chief  Justice  of  the  United  States,  stated 
his  views  nearly  in  the  following  language: 

The  common  law  of  this  country  remains  the  same  as  it  was  before 
the  Eevolution.  The  present  question  is  to  be  decided  by  two  great 
principles;  one  is,  that  all  the  members  of  civil  community  are  bound 
to  each  other  by  compact.  The  other  is,  that  one  of  the  parties  to 
this  compact  cannot  dissolve  it  by  his  own  act.  The  compact  between 
our  communit}^  and  its  members  is,  that  the  community  will  protect 
its  members;  and  on  tlie  part  of  the  members,  that  they  will  at  all 
times  be  obedient  to  the  laws  of  the  community,  and  faithful  in  its 
defence.  This  compact  distinguishes  our  government  from  those 
which  are  founded  in  violence  or  fraud.  It  necessarily  results,  that 
the  members  cannot  dissolve  this  compact,  without  the  consent  or 
default  of  the  community.  There  has  been  here  no  consent  —  no 
default.  Default  is  not  pretended.  Express  consent  is  not  claimed; 
but  it  has  been  argued,  that  the  consent  of  the  community  is  implied 
by  its  policy  —  its  conditions,  and  its  acts. 

In  countries  so  crowded  with  inhabitants  that  the  means  of  subsist- 
ence are  difficult  to  be  obtained,  it  is  reason  and  policy  to  permit 
emigration.  But  our  policy  is  different;  for  our  country  is  but 
sparsely  settled,  and  we  have  no  inhabitants  to  spare. 

Consent  has  been  argued  from  the  condition  of  the  country;  because 
we  were  in  a  state  of  peace.  But  though  we  were  in  peace  the  war 
had  commenced  in  Europe.  "We  wished  to  have  nothing  to  do  with 
the  war;  but  the  war  would  have  something  to  do  with  us.  It  has 
been  extremely  difficult  for  us  to  keep  out  of  this  war;  the  progress 
of  it  has  threatened  to  involve  us.  It  has  been  necessary  for  our 
government  to  be  vigilant  in  restraining  our  own  citizens  from  those 
acts  which  would  involve  us  in  hostilities.  The  most  visionary 
writers  on  this  subject  do  not  contend  for  the  principle  in  the  un- 
limited extent,  that  a  citizen  may  at  any  and  at  all  times  renounce 
his  own  and  join  himself  to  a  foreign  country.  Consent  has  been 
argued  from  the  acts  of  our  own  government,  permitting  the  natural- 
ization of  foreigners.  When  a  foreigner  presents  himself  here,  and. 
proves  himself  to  be  of  a  good  moral  character,  well  affected  to  the 
Constitution  and  Government  of  the  United  States,  and  a  friend  to 
the  good  order  and  happiness  of  civil  society,  if  he  has  resided  here 


374  NATIONALITY.  [PAET  I. 

the  time  prescribed  by  law,  we  grant  him  the  privilege  of  a  citizen. 
We  do  not  inquire  what  his  relation  is  to  his  own  country;  we  have 
not  the  means  of  knowing,  and  the  inquiry  would  be  indelicate;  we 
leave  him  to  judge  of  that.  If  he  embarrasses  himself  by  contracting 
contradictory  obligations,  the  fault  and  the  folly  are  his  own.  But 
this  implies  no  consent  of  the  government,  that  our  own  citizens  should 
expatriate  themselves.  Therefore,  it  is  ray  opinion  that  these  facts 
which  the  prisoner  offers  to  prove  in  his  defence,  are  totally  irrele- 
vant; they  can  have  no  operation  in  law;  and  the  jury  ought  not  to 
be  embarrassed  or  troubled  with  them;  but  by  the  constitution  of  the 
court  the  evidence  must  go  to  the  jury. 

The  prisoner  was  accordingly  found  guilty,  fined  and  imprisoned.^ 

1  See  very  learned  note  in  wliich  Dr.  Wharton  traces  the  doctrine  from  its 
promulgation  in  Williams'  Case,  and  its  fluctuations  until  its  final  recognition.  "  At 
last  in  Shanks  v.  Dupont,  1830  (3  Pet.  242),  tlie  long  circuit  of  doubts  and  reserva- 
tions was  closed,  and  the  court  found  itself  back  again  at  the  position  of  Williams' 
Case,  that  allegiance  without  mutual  consent  is  indissoluble." 

From  the  "  liistorical  review  of  the  principal  discussions  in  the  Federal  courts  on 
this  interesting  subject  in  American  jurisprudence,  the  better  opinion  would  seem  to 
be,  tliat  a  citizen  cannot  renounce  liis  allegiance  to  the  United  States  without  tiie  per- 
mission of  Government,  to  be  declared  by  law;  and  tiiat,  as  there  is  no  existing  legis- 
lative regulation  on  the  case,  the  rule  of  the  English  common  law  remains  unaltered." 
2  Kent's  Commentaries,  p.  60. 

Proclamation  of  the  Prince  Regent,   JnXy  24,  1814,  Cockburn's   Nationality,  77:  — 

"  A  proclamation  by  tiie  Prince  Regent,  of  the  24tii  July,  especially  directed  against 
America,  after  prohibiting  all  natural-born  subjects  of  His  Majesty  from  serving  in 
the  ships  and  armies  of  tiie  United  States,  and  charging  all  such  persons  at  once  to 
quit  sucli  service,  proceeds  as  follows  : 

"  And  whereas  it  has  been  further  represented  to  us  that  divers  of  our  natural-born 
subjects  as  aforesaid  have  been  induced  to  accept  Letters  of  Naturalization  or 
Certificates  of  Citizenship  from  the  said  United  States  of  America,  vainly  supposing 
tliat  by  sucli  letters  or  certificates  they  are  discharged  from  that  duty  and  allegiance 
whicli,  as  our  natural-born  subjects,  they  owe  to  us:  Now  we  do  hereby  warn  all  such 
our  natural-born  subjects,  that  no  such  Letters  of  Naturalization  or  Certificates  of 
Citizensliip  do,  or  can,  in  any  manner  discharge  our  natural-born  subjects  of  tlie 
allegiance,  or  in  any  degree  alter  the  duty  whicii  they  owe  to  us,  their  natural  sover- 
eign. .  .  . 

"  Moreover,  that  all  such,  our  subjects,  as  aforesaid,  who  have  voluntarily  entered, 
or  shall  enter,  or  voluntarily  continue  to  serve  on  board  of  any  such  ships  of  war,  or  in 
the  latid  forces  of  the  said  United  States  of  America,  at  enmity  with  us,  are,  and  will 
be,  guilty  of  higli  treason."  —  Ed. 


CHAP.  IV.]  WILLIAMS'   CASE.  375 


AN   ACT   CONCERNING   AMERICAN   CITIZENS   IN 
FOREIGN   STATES,  JULY  27,   1868. 

"  Whereas  the  right  of  expatriation  is  a  natural  and  inherent  right 
of  all  people,  indispensable  to  the  enjoyment  of  the  rights  of  life, 
liberty,  and  the  pursuit  of  happiness  ;  and  whereas  in  the  recognition 
of  this  principle  this  Government  has  freely  received  emigrants  from 
all  nations,  and  invested  them  with  the  rights  of  citizenship ;  and 
whereas  it  is  claimed  that  such  American  citizens,  with  their  descend- 
ants, are  subjects  of  foreign  states,  owing  allegiance  to  the  governments 
thereof ;  and  whereas  it  is  necessary  to  the  maintenance  of  public 
peace  that  this  claim  of  foreign  allegiance  should  be  promptly  and  finally 
disavowed  :    Therefore, 

"  Be  it  enacted  by  the  Senate  and  House  of  Reijresentatives  of  the 
United  States  of  America  in  Co7ifjress  assembled,  That  any  declaration,, 
instruction,  opinion,  order,  or  decision  of  any  officers  of  this  Govern- 
ment which  denies,  restricts,  impairs,  or  questions  the  right  of 
expatriation,  is  hereby  declared  inconsistejit  with  the  fundamental 
principles  of  this  Government. 

"  Sec.  2.  And  be  it  further  enacted.  That  all  naturalized  citizens  of 
the  United  States,  while  in  foreign  states,  shall  be  entitled  to  and  shall 
receive  from  this  Government,  the  same  protection  of  persons  and 
property  that  is  accorded  to  native-born  citizens  in  like  situations  and 
circumstances. 

"  Sec.  3.  Arid  be  it  farther  enacted,  That  whenever  it  shall  be  made 
known  to  the  President  that  any  citizen  of  the  United  States  has  been 
unjustly  deprived  of  his  liberty  by  or  under  the  authority  of  any 
foreign  government,  it  shall  be  the  duty  of  the  President  forthwith  to 
demand  of  that  government  the  reasons  for  such  imprisonment,  and  if 
it  appears  to  be  wrongful  and  in  violation  of  the  rights  of  American 
citizenship,  the  President  shall  forthwith  demand  the  release  of  such 
citizen,  and  if  the  release  so  demanded  is  unreasonably  delayed  or 
refused,  it  shall  be  the  duty  of  the  President  to  use  such  means,  not 
amounting  to  acts  of  war,  as  he  may  think  necessary  and  proper  to 
obtain  or  effectuate  such  release,  and  all  the  facts  and  proceedings 
relative  thereto  shall  as  soon  as  practicable  be  communicated  by  the 
President  to  Congress."  ^ 

1  "  I  invite  tlie  earnest  attention  of  Congress  to  the  existing  laws  of  the  United  States 
respecting  expatriation  ami  tiie  election  of  nationality  by  individuals. 

"  Many  citizens  of  tiie  United  States  reside  permanently  abroad  with  their  families. 
Under  the  provisions  of  the  act  approved  February  10,  1855,  the  children  of  such 
persons  are  to  be  deemed  and  taken  to  be  citizens  of  the  United  States,  but  the  rights 


376  NATIONALITY.  [PART  I. 


Section  21.  — Citizexship  —  Naturalization. 


HAWLEY,    DISTRICT   JUDGE,    IX  BLAIR   v.    SILVER 
PEAK  MIXES   ET   AL.,    1899. 

(93  Federal,  332,  335.) 

The  general  rule  is  well  settled  that  a  citizen  is  one  who  owes  the 
government  allegiance,  service,  and  money  by  way  of  ta,xation,  and 
to  whom  the  government  in  turn  grants  and  guarantees  liberty  of  per- 
son and  of  conscience,  the  right  of  acquiring  and  possessing  property, 

of  citizenship  are  not  to  descend  to  persons  •whose  fathers  never  resided  in  the 
United  States. 

"It  thus  happens  that  persons  who  have  never  resided  witliin  the  United  States 
have  heen  enabled  to  put  forward  a  pretension  to  tiie  protection  of  tiie  United  States 
against  the  claim  to  military  service  of  the  government  under  wliose  protection  they 
were  born  and  have  been  reared.  In  some  cases  even  naturalized  citizens  of  the 
United  States  have  returned  to  the  land  of  their  birth,  with  intent  to  remain  there, 
and  their  children,  the  issue  of  a  marriage  contracted  there  after  return,  and  who  have 
never  been  in  the  United  States,  have  laid  claim  to  our  protection,  when  the  lapse  of 
many  years  had  imposed  upon  them  the  duty  of  military  service  to  the  only  govern- 
ment which  had  ever  known  them  personally. 

"  Until  the  year  1868  it  was  left  embarrassed  by  conflicting  opinions  of  courts  and 
of  jurists  to  determine  how  far  the  doctrine  of  perpetual  allegiance  derived  from  our 
former  colonial  relations  with  Great  Britain  was  applicable  to  American  citizens. 
Congress  then  wisely  swept  these  doubts  away  by  enacting  that  'any  declaration, 
instruction,  opinion,  order,  or  decision  of  any  officer  of  this  government  wliich  denies, 
restricts,  impairs,  or  questions  the  right  of  expatriation,  is  inconsistent  witli  tlie 
fundamental  principles  of  this  government.'  But  Congress  did  not  indicate  in  that 
statute,  nor  has  it  since  done  so,  what  acts  are  deemed  to  work  expatriation.  For  my 
own  guidance  in  determining  such  questions,  I  required  (under  tlie  provisions  of  the 
Constitution)  the  opinion  in  writing  of  the  principal  officer  in  each  of  the  executive 
departments  upon  certain  questions  relating  to  this  subject.  Tlie  result  satisfies  me 
tliat  further  legislation  has  become  necessary.  I  therefore  commend  the  subject  to 
the  careful  consideration  of  Congress,  and  I  transmit  herewith  copies  of  the  several 
opinions  of  the  principal  officers  of  the  executive  department,  together  with  other 
correspondence  and  pertinent  information  on  the  same  subject. 

"The  United  States,  who  led  tlie  way  in  the  overthrow  of  the  feudal  doctrine  of 
perpetual  allegiance,  are  among  the  last  to  indicate  how  their  own  citizens  may  elect 
another  nationality.  The  papers  submitted  herewith  indicate  what  is  necessary  to 
place  us  on  a  par  with  other  leading  nations  in  liberality  of  legislation  on  this  interna- 
tional question.  We  have  already  in  our  treaties  assented  to  the  principles  which 
would  need  to  be  embodied  in  laws  intended  to  accomplish  such  results.  We  have 
agreed  that  citizens  of  the  United  States  may  cease  to  be  citizens,  and  may  voluntarily 
render  allegiance  to  other  powers.     We  have  agreed  that  residence  iu  a  foreign  land, 


CHAP.  IV.]  HAWLEY   V.    SILVER   PEAK   MINES.  377 

of  suit  aud  of  defence,  and  security  in  person,  estate,  and  reputation. 
Knox  V.  Gi-eenleaf,  4  Dall.  360;  Gassles  y.  Ballon,  6  Pet.  761;  Slcel- 
ton  V.  Tiffi7i,  6  How.  163,  185;  Sheppard  v.  Graves,  14  How.  512, 
513;  Il'mor  v.  Happersett,  21  Wall.  162,  166;  U.  S.  v.  Cruikshank, 
92  U.  S.  542;  Anderson  v.  Watt,  138  U.  S.  695,  706,  11  Sup.  Ct.  449; 
Boyd  V.  Nebraska,  143  U.  S.  135,  159,  12  Sup.  Ct.  375;  Gordon  v. 
Bank,  144  U.  S.  97,  103,  12  Sup.  Ct.  657;  Marks  y.  Marks,  75  Fed. 
321.  Tt  is  also  well  settled  that  a  state  may  deny  all  her  political 
rights  to  an  individual,  and  he  yet  be  a  citizen.  The  right  of  office 
and  suffrage  are  political  purely.     A  citizen  enjoys  civil  rights.     Id. 

witliout  intent  to  return,  shall  of  itself  work  expatriation.  We  have  agreed  in  some 
instances  upon  the  length  of  time  necessary  for  such  continued  residence  to  work  a 
presumption  of  such  intent.  I  invite  Congress  now  to  mark  out  and  define  when  and 
how  expatriation  can  be  accomplished  ;  to  regulate  by  law  the  condition  of  American 
women  marrying  foreigners ;  to  fix  the  status  of  children  born  in  a  foreign  country  of 
American  parents  residing  more  or  less  permanently  abroad,  and  to  make  rules  for 
determining  such  other  kindred  points  as  may  seem  best  to  Congress."  President 
Grant's  Fifth  Annual  Message,  7  Richardson's  Messages  and  Papers,  239-240. 

An  Act  concerning  Aliens  and  British  Subjects,  May  12,  1870.  Extract:  —  "4.  Any 
person  who  by  reason  of  his  having  been  born  within  the  dominions  of  Her  Majesty 
is  a  natural-born  subject,  but  who  also  at  the  time  of  his  birth  became,  under  the  law 
of  any  foreign  state,  a  subject  of  such  state,  and  is  still  such  subject,  may,  if  of  full 
age  and  not  under  any  disability,  make  a  declaration  of  alienage  in  manner  aforesaid, 
and  from  and  after  the  making  of  such  declaration  shall  cease  to  be  a  British  subject. 
6.  From  and  after  the  passing  of  this  act  an  alien  shall  not  be  entitled  to  be  tried  by  a 
jury  de  medietate  lingua,  but  shall  be  triable  in  the  same  manner  as  if  he  were  a 
natural-born  subject.  "  G.  Any  British  subject  who  has  at  any  time  before,  or  may  at 
any  time  after,  the  passing  of  this  act,  when  in  any  foreign  state  and  not  under  any 
disability,  voluntarily  become  naturalized  in  such  state,  shall,  from  and  after  the  time 
of  his  so  having  become  naturalized  in  such  foreign  state,  be  deemed  to  have  ceased 
to  be  a  British  subject  and  be  regarded  as  an  alien  ;"  &c. 

In  France  it  is  likewise  held  that  French  nationality  is  lost  by  naturalization  in 
a  foreign  state.     Alibert's  case,  1852,  Report  on  Naturalization,  United  States,  p.  133. 

In  the  excellent  case  of  Michael  Zeiter,  1869,  before  the  court  of  first  instance  of 
Wissembourg,  the  question  was  whether  he  was  exempt  from  militar}'  service.  And 
this  depended  upon  whether  he  was  a  citizen  of  France,  for,  by  the  2d  article  of  the 
law  of  March  21,  1832,  as  the  court  say,  "  nul  ne  peut  etre  admis  dans  les  troupes 
fran^^aises  s'il  n'est  francais." 

Zeiter  contended  that  he  had  been  naturalized  in  the  United  States,  and  had  thereby 
lost  his  French  nationality.  The  court  assented  to  this  view  of  the  law,  but  demanded 
further  proof  of  his  naturalization  in  America.  When  he  had  procured  satisfactory 
proofs,  the  court  decreed  as  follows  : 

"  Attendu  que,  par  la  production  du  certificat  qui  lui  a  e'te'  delivre'  le  vingt-huit  mai 
dernier,  par  le  consul  des  Etats  Unis  a  Paris,  el  qui  a  e'te'  enregistre'  a  Wissembourg 
aujourd'hui,  le  demandeur  a  justifie  qu'il  est  citoyen  americain  :  le  tribunal  donne  acte 
an  demandeur  de  ce  que,  par  la  production  du  dit  certificat,  il  a  satisfait  au  jugement 
rendu  en  ce  sie'ge  le  vingt-cinq  avril  dernier. 

"En  consequence  dit  et  reconnait  que  le  demandeur,  Michel  Zeiter,  par  sa  natural- 
isation en  pays  e'tranger,  a  perdu  la  qualite'  de  fran9ais."  —  Ed. 


378  NATIONALITY.  [PART  I. 

328;  Burnham  v.  Rangeleij,  1  Woodb.  &  M.  7,  Fed.  Cas.  No.  2176; 
Catletty.  Insurance  Co,,  1  Paine,  594,  Fed.  Cas.  No.  2517;  Minor  \. 
Happersett,  21  Wall.  162;  Blanck  v.  Faiisch,  113  111.  60,  64;  State  v. 
Fairlamb,  121  Mo.  138,  150,  25  S.  W.  895." 


jLITTELL   V.   ERIE  E.   E.   CO. 
United  States  Circuit  Court,  S.  D.  New  York,  1900. 

(105  Federal,  539.) 

Wheeler,  District  Judge.  Jurisdiction  of  this  case  depends  upon 
citizenship.  The  complaint  alleges  "that  the  plaintiff  now  is,  and  at 
all  times  hereinafter  mentioned  was,  a  citizen  of  the  United  States, 
and  an  actual  resident  of  the  State  of  New  Jersey."  The  defendant 
has  demurred,  assigning  this  to  be  an  insufficient  allegation  of  citizen- 
ship in  New  Jersey.  But  citizens  of  the  United  States  residing  in 
any  of  the  States  are  citizens  of  those  States.  Gassies  v.  Ballon,  6 
Pet.  761,  8  L.  Ed.  573;  Bred  Scott  v.  Sandford,  19  How.  393,  15  L. 
Ed.  691;  Boyd  v.  Nebraska,  143  U.  S.  135,  12  Sup.  Ct.  375,  36  L.  Ed. 
103.  This  allegation  is,  therefore,  a  full  equivalent  of  what  a  direct 
one  would  be  that  the  plaintiff  is  a  citizen  of  New  Jersey.  In  the 
cases  cited  in  support  of  the  demurrer  there  does  not  appear  to  have 
been  any  such  allegation  relating  to  citizenship  of  the  party  in  ques- 
tion as  this.  Robertson  v.  Cease,  97  U.  S.  646,  24  L.  Ed.  1057;  In- 
sura7ice  Co.  v.  Rhoads,  119  U.  S.  237,  7  Sup.  Ct.  193,  30  L.  Ed.  380; 
Menard  v.  Goggan,  121  U.  S.  253,  7  Sup.  Ct.  873,  30  L.  Ed.  914; 
Wolfe  V.  Lisurance  Co.,  148  U.  S.  389,  13  Sup.  Ct.  602,  37  L.  Ed. 
493;  Home  v.  George  II.  Hammond  Co.,  155  U.  S.  393,  15  Sup.  Ct. 
167,  39  L.  Ed.  197;  Cooper  v.  Newell,  155  U.  S.  532,  15  Sup.  Ct.  355, 
39  L.  Ed.  249.  Such  a  one  was  held  to  be  sufficient  in  Gassies  v. 
Ballon,  and  was  so  recognized  in  Bred  Scott  v.  Sandford,  which  have 
not  been  either  expressly  or  impliedly  overruled  as  to  this.  Demurrer 
overruled.^ 

1  On  the  privileges  of  citizens  of  State  in  anotlier  State  of  the  Union,  see  note,  1 
Lawyer's  Rep.  Ann.  56,  and  as  to  privileges  of  citizens  in  general,  see  note,  11  L.  K. 
A.  679-586.  See  also  the  elaborate  list  of  authorities  on  Rights  of  Citizens,  in  A.  B. 
Hart,  Handbook  of  History,  Diplomacy,  Government,  1901,  pp.  140-149.  —  Ed. 


CHAP.  IV.]  EX   PARTE  CHIN  KING.  379 

Ex  Parte  CHIN   KING. 

Ex  Parte  CHAN   SAN   HEE. 

United  States  Circuit  Court  for  Oregion',  1888. 

(35  Federal,  354.) 

Application  for  writ  of  habeas  corjnis. 

Deadt,  J. — "  The  writ  of  liaheas  corpus  in  these  cases  was  allowed 
and  issued  on  June  25,  1888,  and  they  were  heard  together  on  tlie 
same  day. 

"  The  petition  of  Chin  King  states  that  she  was  born  in  San  Fran- 
cisco, Cal.,  on  October  10, 1868  ;  while  that  of  Chan  San  Hee  states 
that  she  was  born  in  Portland,  Or.,  on  March  15,  1878 ;  and  they 
each  state  that  they  are  restrained  of  their  liberty  by  William  Robert 
Laird,  the  master  of  the  British  bark  '  Kitty,'  because  the  collector 
of  customs  for  this  port  refuses  to  allow  them  to  land  from  said  bark 
on  the  ground  that  the  petitioners  are  Chinese,  and  have  no  return 
certificate,  as  required  by  the  act  of  Congress  on  that  subject ;  but 
they  aver  that  they  are  native-born  citizens  of  the  United  States  and 
therefore  not  included  within  the  terms  of  said  act. 

"  The  return  of  the  master  to  each  writ  states  that  the  '  Kitty ' 
sailed  from  Hong  Kong  for  Portland,  on  April  19,  1888,  and  that  the 
petitioners  were  passengers  thereon  during  said  voyage,  and  are  now 
in  custody  on  board  the  same,  for  the  reasons  stated  in  the  petitions. 

"  On  application  the  United  States  district  attorney  was  allowed 
to  intervene  on  behalf  of  the  United  States,  and  allege  that  he  had 
no  knowledge  or  information  suflQcient  to  form  a  belief,  as  to  whether 
the  petitioners  were  born  in  the  United  States,  as  alleged,  or  not. 

"  On  the  hearing  it  appeared  that  Chung  Yip  Gen  is  a  Chinese 
merchant,  who  has  lived  and  done  business  in  this  city  for  the  past 
13  years  and  for  12  years  prior  thereto  in  San  Francisco ;  that  he 
was  married  in  San  Francisco  about  23  years  ago,  and  the  petitioners 
are  his  daughters,  the  older  one  having  been  born  in  San  Francisco, 
and  the  younger  one  in  Portland,  and  that  in  1881  the  father  sent 
them  and  their  mother  to  China,  from  whence  they  were  to  return 
when  they  pleased. 

"  By  the  common  law,  a  child  born  within  the  allegiance — the 
jurisdiction — of  the  United  States,  is  born  a  subject  or  citizen  there- 
of, without  reference  to  the  political  status  or  condition  of  its  parents. 
McKay  v.  Campbell^  2  Sawy.,  118  ;  Li  re  Look  Tin  Sing,  10  Sawy,,  353 ; 


'380  NATIONALITY.  [PART  I. 

21  Fed.  Rep.,  905 ;  Lynch  v.  Clarke,  1  Sanclf.  Ch.,  583.  In  the  latter 
case  it  was  held  that  Julia  Lyncli,  wlio  was  born  in  New  York  in 
1 849,  of  alien  parents  during  a  temporary  sojourn  by  them  in  that 
city,  and  returned  with  them  the  same  year  to  their  native  country, 
where  she  resided  until  her  death,  was  an  American  citizen. 

"The  vice-chancellor,  after  an  exhaustive  examination  of  the  law, 
declared  that  every  citizen  born  within  the  dominion  and  allegiance 
of  the  United  States  was  a  citizen  thereof,  without  reference  to  the 
situation  of  his  parents. 

"  This,  of  course,  does  not  include  the  children  born  in  the  United 
States  of  parents  engaged  in  the  diplomatic  service  of  foreign  gov- 
ernments, whose  residence,  in  contemplation  of  public  law,  is  a  part 
of  their  own  country. 

"  The  rule  of  the  common  law  on  this  subject  has  been  incorpo- 
rated into  the  fundamental  law  of  the  land. 

"  The  fourteenth  amendment  declares  :  '  All  persons  born  or  natu- 
ralized in  the  United  States,  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States,  and  of  the  state  wherein  they 
reside.' 

"  In  In.  re  Look  Tin  Sing,  10  Sawy.,  353  ;  21  Fed.  Rep.,  905,  it  was 
held  that  a  person  born  within  the  United  States,  of  Chinese  parents, 
not  engaged  in  any  diplomatic  or  official  capacity  under  the  emperor 
of  China,  is  a  citizen  of  the  United  States.  The  case  is  similar  to 
that  of  the  petitioners.  The  party  in  question  was  born  in  California 
in  1870,  of  Chinese  parents.  In  1879,  he  went  to  China,  and  returned 
to  California  in  1884,  without  the  certificate  provided  for  in  the  re- 
striction act  of  1882,  or  that  of  1884,  and  was  therefore  denied  the 
right  to  land. 

"  Mr.  Justice  Field,  in  delivering  the  opinion  of  the  court,  in  which 
Sawyer,  Sabin,  and  Hoffman  concurred,  says  (p.  359) :  '  The  inability 
of  persons  to  become  citizens  under  those  laws  (of  naturalization)  in 
no  respect  impairs  the  effect  of  their  birth,  or  of  the  birth  of  their 
children,  upon  the  status  of  either,  as  citizens  of  the  United  States.' 

"  The  only  point  made  by  the  district  attorney  against  the  peti- 
tioners on  the  question  of  their  citizenship  is  that  they  left  this 
country  without,  as  he  claims,  any  definite  or  fixed  purpose  to 
return. 

"  But  I  think  the  evidence  does  not  warrant  so  strong  a  statement. 
For  aught  that  appears  they  intended  to  return ;  and  the  fact  that 
they  have  returned  gives  strength  to  the  inference.  The  most  that 
can  be  said  is,  there  was  no  time  fixed  for  their  return.  And  that  is 
the  case  with  hundreds  of  minor  American  citizens,  who  go  abroad 
yearly  for  nurture  and  education.    But  it  seems  that  the  citizenship 


CHAP.  IV.]  EX   PARTE   CHIN   KING.  381 

of  the  petitioners  would  not  be  affected  by  the  fact,  if  they  had 
never  come  back,  unless  it  also  appears  that  they  had  in  some  formal 
and  affirmative  way  renounced  the  same. 

"  However,  in  my  judgment,  a  father  cannot  deprive  his  minor 
child  of  the  sta'us  of  American  citizenship,  impressed  upon  it  by  the 
circumstances  of  its  birth  under  the  Constitution  and  within  the 
jurisdiction  of  the  United  States. 

"This  status,  once  acquired,  can  only  be  lost  or  changed  by  the 
act  of  the  party  when  arrived  at  majority,  and  the  consent  of  the 
government. 

"  By  section  2  of  article  4  of  the  Constitution  it  is  provided :  '  The 
citizens  of  each  state  shall  be  entitled  to  all  privileges  and  immuni- 
ties of  citizens  in  the  several  states.' 

"  It  lias  always  been  held  that  the  privileges  and  immunities 
there  referred  to  are  fundamental ;  and  that  a  citizen  of  one  state 
may  at  least,  under  this  provision,  pass  through  or  reside  in  any 
other  state  of  tlie  union  for  the  ordinary  pursuits  or  purposes  of  life. 
CorfieldY.  Coryell,  4  Wash.  C.  C,  380 ;  Paul\.  Virginia,  8  Wall.,  180. 

"The  action  of  the  collector  in  these  cases  has  the  effect,  and  is  so 
intended,  to  deny  these  citizens  of  the  United  States  the  right  of  free 
locomotion  within  the  same, — the  right  to  come  into,  pass  through, 
or  reside  in  this  state,  and  is  therefore  contrary  to  and  in  violation  of 
the  constitutional  provision  guaranteeing  such  right  to  every  citizen. 
Sections  751,  752,  and  753  of  the  Revised  Statutes  provide,  in  effect, 
that  the  courts  of  the  United  States  and  the  judges  tliereof  shall 
have  power,  by  habeas  corjms,  to  deliver  a  person  held  in  custody  or 
restrained  of  his  liberty  in  violation  of  the  Constitution  or  of  a  law 
or  treaty  of  the  United  States. 

"  The  petitioners,  as  we  have  seen,  are  restrained  of  their  liberty 
In  violation  of  the  Constitution,  and  therefore  this  court  has  juris- 
diction to  discharge  them  on  habeas  coi-jnts. 

"  The  petitioners  are  discharged  from  custody."  ^ 

1  In  U.  S.  V.  TT^'o?;^  Kim  Ark,  1898,  1G9  U.  S.  649,  Mr.  Justice  Gray,  in  delivering 
the  juclsjment  of  the  court,  gives  an  exiiaustive  survey  of  citizensiiip  by  birth  in  the 
United  States.  Authorities  are  cited  in  great  fulness,  and  reference  is  made  in  tlie 
case  to  the  most  recent  as  well  as  the  most  autiioritative  decisions  on  the  subject  in 
the  United  States,  England,  and  the  Continent. 

In  a  note  on  this  case  in  12  Harvard  Law  Keview,  55,  the  following  apt  resume  is 
given  :  "  Citizenship  is  a  question  not  of  international  but  of  municipal  law.  The 
division  of  the  law  of  citizenship  into  the  jus  sanguinis  and  the  jus  soli  is  a  deduction 
from  tlie  division  of  the  jurisdiction  of  a  state  into  the  personal  and  the  territorial. 
In  tlie  civil  law,  citizenship  is  by  descent.  At  common  law,  all  those  born  within  the 
kingdom  or  legeance  of  the  Crown  were  held  subjects ;  and  if  the  United  States  have 
a  common  law  this  ancient  rule  governs.     Calcin's  Case,  7  Rep.  1.     Whatever  abstract 


382  NATIONALITY.  [PABT  I. 


FONG  YUE   TING  v.    UNITED   STATES. 

WONG  QUAN  V.    UNITED   STATES. 

LEE   JOE   V.    UNITED    STATES. 

Supreme  Coukt  of  the  United  States,  1892, 

(149  United  States,  698.) 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court,^ 
Tlie  general  principles  of  public  law  which  lie  at  the  foundation  of 
these  cases  are  clearly  established  by  previous   judgments  of   this 
court,  and  by  the  authorities  therein  referred  to. 

In  the  recent  case  of  Nishimura  Ekiu  v.  United  States,  142  U.  S. 
651,  659,  the  court,  in  sustaining  the  action  of  the  executive  depart- 
ment, putting  in  force  an  act  of  Congress  for  the  exclusion  of  aliens, 

rules  there  may  be,  tlie  right  of  every  sovereignty  to  determine  for  itself  by  its  own 
laws  who  are  its  citizens  is  a  fundamental  one.  By  the  Fourteenth  Amendment  of  the 
United  States  Constitution, "  All  persons  born  or  naturalized  witiiin  the  United  States 
are  citizens;"  the  exception  is  that  those  not  born  "  subject  to  jurisdiction  thereof  " 
are  not  citizens.  Are  the  children  of  aliens  within  the  exception?  When  within  our 
territory,  the  sovereigns,  diplomats,  sailors  upon  ships  of  war,  and  soldiers  m  the 
organized  military  forces  of  a  foreign  state,  are  not  subject  to  our  jurisdiction. 
Children  born  of  parents  under  these  circumstances  of  extraterritoriality  would  not  be 
citizens.  The  same  is  true  of  tlie  children  of  tribal  Indians.  The  logic  of  these 
exceptions  of  sovereignty,  however,  does  not  apply  to  the  alien  subject  domiciled  in 
the  United  States.  He  is  subject  to  the  territorial  jurisdiction  ;  his  children  are  born 
subject  to  our  jurisdiction;  and  these,  by  our  municipal  law,  are  citizens.  Accord- 
ingly, the  decision  reached  by  the  Supreme  Court  seems  to  have  sanction  of  authority, 
policy,  and  theory. 

"  The  case  further  presents  a  phase  of  the  conflict  of  laws  not  often  considered.  The 
objection  to  the  doctrine  of  tlie  majority  opinion  has  been  taken  by  very  high 
authorities,  that  as  our  law  provides  no  right  of  election  by  or  for  a  child,  as  do  the 
Continental  codes,  a  dual  allegiance  will  result,  and  this  is  urged  to  be  contrary  to  the 
theory  of  citizenship.  This  difficulty,  however,  is  apparent  rather  than  real.  Wiien 
a  child  is  born  in  America  of  Chinese  parents,  China  claims  him  by  the/us  sangwnis, 
America  by  the  jus  soli.  It  is  not  a  question  whether  he  is  an  American  or  a  China- 
man ;  he  is  both.  The  municipal  laws  being  thus  in  conflict,  his  citizenshij)  at  any 
time  will  depend  upon  whether  he  is  subject  to  the  jurisdiction  of  the  one  or  of  the 
other  country.  The  duality  of  citizenship  is  a  fact  only  in  a  third  country.  In 
China  lie  is  a  Chinaman  ;  in  America,  an  American."  —  Ed. 

1  In  this  case  the  question  before  the  court  was  as  to  the  validity  of  a  statute 
(act  of  May  5,  1892,  c.  60),  requiring  the  registration  of  Chinese  laborers  within  the 
U.  S.  who  were  entitled  by  the  existing  law  to  remain  and  the  expulsion  of  those 
not  registered. —  Ed. 


CHAP.  IV.]  FONG   YUE   TING    V.    UNITED   STATES.  383 

said:  "It  is  an  accepted  maxiin  of  international  law,  that  every 
sovereign  nation  has  the  power,  as  inherent  in  sovereignty,  and 
essential  to  self-preservation,  to  forbid  the  entrance  of  foreigners 
within  its  dominions,  or  to  admit  them  only  in  such  cases  and  upon 
such  conditions  as  it  may  see  fit  to  prescribe.  In  the  United  States, 
this  power  is  vested  in  the  national  government,  to  which  the  Con- 
stitution has  committed  the  entire  control  of  international  relations, 
in  peace  as  well  as  in  war.  It  belongs  to  the  political  department 
of  the  government,  and  may  be  exercised  either  through  treaties 
made  by  the  President  and  Senate,  or  through  statutes  enacted  by 
Congress." 

The  same  views  were  more  fully  expounded  in  the  earlier  case  of 
Chae  Ckan  Ping  v.  United  States,  130  U.  S.  581,  in  which  the  valid- 
ity of  a  former  act  of  Congress,  excluding  Chinese  laborers  from  the 
United  States,  under  the  circumstances  therein  stated,  was  affirmed. 

In  the  elaborate  opinion  delivered  by  Mr.  Justice  Field,  in  behalf 
of  the  court,  it  was  said:  "Those  laborers  are  not  citizens  of  the 
United  States;  they  are  aliens.  That  the  government  of  the  United 
States,  through  the  action  of  the  legislative  department,  can  exclude 
aliens  from  its  territory  is  a  proposition  which  we  do  not  think  open 
to  controversy.  Jurisdiction  over  its  own  territory  to  that  extent  is 
an  incident  of  every  independent  nation.  It  is  a  part  of  its  indepen- 
dence. If  it  could  not  exclude  aliens,  it  would  be  to  that  extent 
subject  to  the  control  of  another  power."  "The  United  States,  in 
their  relation  to  foreign  countries  and  their  subjects  or  citizens,  are 
one  nation,  invested  with  powers  which  belong  to  independent 
nations,  the  exercise  of  which  can  be  invoked  for  the  maintenance 
of  its  absolute  independence  and  security  throughout  its  entire 
territory."     130  U.  S.  60-3,  604. 

It  was  also  said,  repeating  the  language  of  Mr.  Justice  Bradley 
in  Knox  v.  Lee,  12  Wall.  457,  555:  "The  United  States  is  not  only 
a  government,  but  it  is  a  national  government,  and  the  only  govern- 
ment in  this  country  that  has  the  character  of  nationality.  It  is 
invested  with  power  over  all  the  foreign  relations  of  the  country,  war, 
peace,  and  negotiations  and  intercourse  with  other  nations;  all  of 
which  are  forbidden  to  the  State  governments."  130  U.  S.  605. 
And  it  was  added:  "For  local  interests  the  several  States  of  the 
Union  exist;  but  for  international  purposes,  embracing  our  relations 
with  foreign  nations,  we  are  but  one  people,  one  nation,  one  power." 
130  U.  S.  606. 

The  court  then  went  on  to  say;  "To  preserve  its  independence, 
and  give  security  against  foreign  aggression  and  encroachment,  is  the 
highest  duty  of  every  nation,  and  to  attain  these  ends  nearly  all  other 


384  NATIONALITY.  [PART  I. 

considerations  are  to  be  subordinated.  It  matters  not  in  what  form 
such  aggression  and  encroachment  come,  whether  from  the  foreign 
nation  acting  in  its  national  character,  or  from  vast  hordes  of  its 
people  crowding  in  upon  us.  The  government,  possessing  the  powers 
which  are  to  be  exercised  for  protection  and  security,  is  clothed  with 
authority  to  determine  the  occasion  on  which  the  powers  shall  be 
called  forth;  and  its  determination,  so  far  as  the  subjects  affected  are 
concerned,  is  necessarily  conclusive  upon  all  its  departments  and  offi- 
cers. If,  therefore,  the  government  of  the  United  States,  through  its 
legislative  department,  considers  the  presence  of  foreigners  of  a  differ- 
ent race  in  this  country,  who  will  not  assimilate  with  us,  to  be  danger- 
ous to  its  peace  and  security,  their  exclusion  is  not  to  be  stayed 
because  at  the  time  there  are  no  actual  hostilities  with  the  nation  of 
which  the  foreigners  are  subjects.  The  existence  of  war  would  ren- 
der the  necessity  of  the  proceeding  only  more  obvious  and  pressing. 
The  same  necessity,  in  a  less  pressing  degree,  may  arise  when  war 
does  not  exist,  and  the  same  authority  which  adjudges  the  necessity 
in  one  case  must  also  determine  it  in  the  other.  In  both  cases,  its 
determination  is  conclusive  upon  the  judiciary.  If  the  government 
of  the  country  of  which  the  foreigners  excluded  are  subjects  is  dis- 
satisfied with  this  action,  it  can  make  complaint  to  the  executive 
head  of  our  government,  or  resort  to  any  other  measure  which,  in  its 
judgment,  its  interests  or  dignity  may  demand;  and  there  lies  its 
only  remedy.  The  power  of  the  government  to  exclude  foreigners 
from  the  country,  whenever,  in  its  judgment,  the  public  interests 
require  such  exclusion,  has  been  asserted  in  repeated  instances,  and 
never  denied  by  the  executive  or  legislative  departments."  130  U.  S. 
606,  607.  This  statement  was  supported  by  many  citations  from  the 
diplomatic  correspondence  of  successive  Secretaries  of  State  collected 
in  Wharton's  International  Law  Digest,  §  206. 

The  right  of  a  nation  to  expel  or  deport  foreigners,  who  have  not 
been  naturalized  or  taken  any  steps  towards  becoming  citizens  of  the 
country,  rests  upon  the  same  grounds,  and  is  as  absolute  and  unquali- 
fied as  the  right  to  prohibit  and  prevent  their  entrance  into  the 
country. 

This  is  clearly  affirmed  in  despatches  referred  to  by  the  court  in 
Chae  Chan  Ping''s  Case.  In  1856,  Mr.  Marcy  wrote :  "  Every  society 
possesses  the  undoubted  right  to  determine  who  shall  conpose  its 
members,  and  it  is  exercised  by  all  nations,  both  in  peace  and  war. 
A  memorable  example  of  the  exercise  of  this  power  in  time  of  peace 
was  the  passage  of  the  alien  law  of  the  United  States  in  the  year 
1798."  In  1869,  Mr.  Fish  wrote:  "The  control  of  the  people  within 
its  limits,  and  the  right  to  expel  from  its  territory  persons  who  are 


CHAP.  IV.]  FONG   YUE   TING   V.    UNITED    STATES.  385 

dangerous  to  the  peace  of  the  State,  are  too  clearly  within  the  essen- 
tial attributes  of  sovereignty  to  be  seriously  contested."     Wharton's- 
International  Law  Digest,  §  206;  130  U.  S.  607. 

The  statements  of  leading  commentators  ou  the  law  of  nations  are 
to  the  same  effect. 

Vattel  says:  "Every  nation  has  the  riglit  to  refuse  to  admit  a 
foreigner  into  the  country,  when  he  cannot  enter  without  putting  the 
nation  in  evident  danger,  or  doing  it  a  manifest  injury.  What  it 
owes  to  itself,  the  care  of  its  own  safety,  gives  it  this  right;  and  in 
virtue  of  its  natural  liberty,  it  belongs  to  the  nation  to  judge  whether 
its  circumstances  will  or  will  not  justify  the  admission  of  the  for- 
eigner." "Thus,  also,  it  has  a  right  to  send  them  elsewhere,  if  it 
has  just  cause  to  fear  that  they  will  corrupt  the  manners  of  the  citi- 
zens; that  they  will  create  religious  disturbances,  or  occasion  any 
other  disorder,  contrary  to  the  public  safety.  In  a  word,  it  has  a 
right,  and  is  even  obliged,  in  this  respect,  to  follow  the  rules  which 
prudence  dictates."  Yattel's  Law  of  Nations,  lib.  1,  c.  19,  §§  230, 
231. 

Ortolan  says:  "The  government  of  each  state  lias  always  the  right 
to  compel  foreigners  who  are  found  within  its  territory  to  go  aAvny, 
by  having  them  taken  to  the  frontier.  This  right  is  based  on  the 
fact  that,  the  foreigner  not  making  part  of  the  nation,  his  individual 
reception  into  the  territory  is  matter  of  pure  permission,  of  simiole 
tolerance,  and  creates  no  obligation.  The  exercise  of  this  right  may 
be  subjected,  doubtless,  to  certain  forms  by  the  domestic  laws  of  each 
country;  but  the  right  exists  none  the  less,  universally  recognized  and 
put  in  force.  In  France,  no  special  form  is  now  prescribed  in  this 
matter;  the  exercise  of  this  right  of  expulsion  is  wholly  left  to  the 
executive  power."  Ortolan,  Diplomatie  de  la  Mer,  lib.  2,  c.  14  (4th 
ed.),  p.  297. 

Phillimore  says:  "It  is  a  received  maxim  of  international  law,  that 
the  government  of  a  state  may  prohibit  the  entrance  of  strangers  into 
the  country,  and  may  therefore  regulate  the  conditions  under  which 
they  shall  be  allowed  to  remain  in  it,  or  may  require  and  compel  their 
departure  from  it."  1  Phillimore's  International  Law  (3d  ed.),  c. 
10,  §  220. 

Bar  says:  "Banishment  and  extradition  must  not  be  confounded. 
The  former  is  simply  a  question  of  expediency  and  humanity,  since 
no  state  is  bound  to  receive  all  foreigners,  although,  perhaps,  to  ex- 
clude all  would  be  to  say  good-by  to  the  international  union  of  all 
civilized  states;  and  although  in  some  states,  such  as  England, 
strangers  can  only  be  expelled  by  means  of  special  acts  of  the  legis- 
lative power,  no  state  has  renounced  its  right  to  expel  them,  as  is 

2d 


386  NATIONALITY.  [PART  I. 

shown  by  tlie  alien  bills  which  the  government  of  England  has  at 
times  nsed  to  invest  itself  with  the  right  of  expulsion."  *' Banish- 
ment is  regulated  by  rules  of  expediency  and  liumanity,  and  is  a 
matter  for  the  police  of  the  state.  No  doubt  the  police  can  appre- 
hend any  foreigner  who  refuses  to  quit  the  country  in  spite  of 
authoritative  orders  to  do  so,  and  convey  him  to  the  frontier."  Bar's 
International  Law  (Gillespie's  ed.  1883),  708  note,  711. 

In  the  passages  just  quoted  from  Gillespie's  translation  of  Bar, 
"banishment"  is  evidently  used  in  the  sense  of  expulsion  or  deporta- 
tion by  the  political  authority  on  the  ground  of  expediency,  and  not 
in  the  sense  of  transportation  or  exile  by  way  of  punishment  for 
crime.  Strictly  speaking,  "transportation,"  "extradition"  and  "de- 
portation," although  each  has  the  effect  of  removing  a  person  from  the 
country,  are  different  things,  and  have  different  purposes.  "Trans- 
portation" is  by  way  of  punishment  of  one  convicted  of  an  offence 
against  the  laws  of  the  country.  "Extradition"  is  the  surrender  to 
another  country  of  one  accused  of  an  offence  against  its  laws,  there 
to  be  tried,  and,  if  found  guilty,  punished.  "Deportation"  is  the 
removal  of  an  alien  out  of  the  country,  simply  because  his  presence  is 
deemed  inconsistent  with  the  public  welfare,  and  without  any  punish- 
ment being  imposed  or  contemplated,  either  under  the  laws  of  the 
country  out  of  which  he  is  sent,  or  under  those  of  the  country  to 
which  he  is  taken. 

In  England,  the  only  question  that  has  ever  been  made  in  regard  to 
the  power  to  expel  aliens  has  been  whether  it  could  be  exercised  by 
the  King  without  the  consent  of  Parliament.  It  was  formerly  exer- 
cised by  the  King,  but  in  later  times  by  Parliament,  which  passed 
several  acts  on  the  subject  between  1793  and  1848.  2  Inst.  57;  1 
Chalmers  Opinions,  26;  1  Bl.  Com.  260;  Chitty  on  the  Prerogative, 
49;  1  Phillimore,  c.  10,  §  220  and  note;  30  Pari.  Hist.  157,  167,  188, 
217,  229;  34  Hansard  Pari.  Deb.  (1st  series)  441,  445,  471,  1065- 
1071;    6  Law  Quart.  Eev.  27. 

Eminent  English  judges,  sitting  in- the  Judicial  Committee  of  the 
Privy  Council,  have  gone  very  far  in  supporting  the  exclusion  or 
expulsion,  by  the  executive  authority  of  a  colony,  of  aliens  having  no 
absolute  right  to  enter  its  territory  or  to  remain  therein. 

In  1837,  in  a  case  arising  in  the  Island  of  Mauritius,  which  had 
been  conquered  by  Great  Britain  from  France  in  1810,  and  in  which 
the  law  of  France  continued  in  force,  Lord  Lyndhurst,  Lord  Brougham 
and  Justices  Bosanquet  and  Erskine,  although  considering  it  a  case  of 
great  hardship,  sustained  the  validity  of  an  order  of  the  English  gov- 
ernor, deporting  a  friendU'  alien  who  had  long  resided  and  carried  on 
business  in  the  island,  and  had  enjoyed  the  privileges  and  exercised 


CHAP.  IV.]  FOXG   YUE   TING   V.   UNITED    STATES.  387 

the  rights  of  a  person  duly  domiciled,  but  who  had  not,  as  required 
by  the  French  law,  obtained  from  the  colonial  government  formal 
and  express  authority  to  establish  a  domicil  there.  In  re  Adam^  1 
Moore  P.  C.  460. 

In  a  recent  appeal  from  a  judgment  of  the  Supreme  Court  of  the 
Colony  of  Victoria,  a  collector  of  customs,  sued  by  a  Chinese  immi- 
grant for  preventing  him  from  landing  in  the  colony,  had  pleaded  a 
justification  under  the  order  of  a  colonial  minister  claiming  to  exer- 
cise an  alleged  prerogative  of  the  Crown  to  exclude  alien  friends,  and 
denied  the  right  of  a  court  of  law  to  examine  his  action,  on  the  ground 
that  what  he  had  done  was  an  act  of  state ;  and  the  plaintiff  had 
demurred  to  the  plea.  Lord  Chancellor  Halsbury,  speaking  for  him- 
self, for  Lord  Herschell  (now  Lord  Chancellor)  and  for  other  lords, 
after  deciding  against  the  plaintiff  on  a  question  of  statutory  con- 
struction, took  occasion  to  observe:  "The  facts  appearing  on  the 
record  raise,  quite  apart  from  the  statutes  referred  to,  a  grave  ques- 
tion as  to  the  plaintiff's  right  to  maintain  the  action.  He  can  only 
do  so  if  he  can  establish  that  an  alien  has  a  legal  right,  enforceable 
by  action,  to  enter  British  territory.  No  authority  exists  for  the 
proposition  tliat  an  alien  has  any  such  right.  Circumstances  may 
occur  in  which  the  refusal  to  permit  an  alien  to  land  might  be  such 
an  interference  with  international  comity  as  would  properly  give  rise 
to  diplomatic  remonstrance  from  the  country  of  which  he  was  a 
native;  but  it  is  quite  another  thing  to  assert  that  an  alien,  excluded 
from  any  part  of  her  Majesty's  dominions  by  the  executive  govern- 
ment there,  can  maintain  an  action  in  a  British  court,  and  raise  such 
questions  as  were  argued  before  their  lordships  on  the  present  appeal 
—  whether  the  proper  oflficer  for  giving  or  refusing  access  to  the  coun- 
try has  been  duly  authorized  by  his  own  colonial  government,  whether 
the  colonial  government  has  received  sufficient  delegated  authority 
from  the  Crown  to  exercise  the  authority  which  the  Crown  had  a 
right  to  exercise  through  the  colonial  government  if  properly  com- 
municated to  it,  and  whether  the  Crown  has  the  right  without  parlia- 
mentary authority  to  exclude  an  alien.  Their  lordships  cannot  assent 
to  the  proposition  that  an  alien  refused  permission  to  enter  British 
territory  can,  in  an  action  in  a  British  court,  compel  the  decision  of 
such  matters  as  these,  involving  delicate  and  difficult  constitutional 
questions  affecting  the  respective  rights  of  the  Crown  and  Parlia- 
ment, and  the  relations  of  this  country  to  her  self-governing  colonies. 
When  once  it  is  admitted  that  there  is  no  absolute  and  unqualified 
right  of  action  on  behalf  of  an  alien  refused  admission  to  British 
territory,  their  lordships  are  of  opinion  that  it  would  be  impossible, 
upon  the  facts  which  the  demurrer  admits,  for  an  alien  to  maintain 


388  NATIONALITY.  [PART  I. 

an  action."     Musgrove  v.    Chun  Teeong  Toy,  App.  Cas.  (1891),  272, 
282,  283. 

The  right  to  exchide  or  to  expel  all  aliens,  or  any  class  of  aliens, 
absolutely  or  upon  certain  conditions,  in  war  or  in  peace,  being  an 
inherent  and  inalienable  right  of  every  sovereign  and  independent 
nation,  essential  to  its  safety,  its  independence  and  its  welfare,  the 
question  now  before  the  court  is  whether  the  manner  in  which  Con- 
gress has  exercised  this  right  in  sections  6  and  7  of  the  act  of  1892 
is  consistent  with  the  Constitution. 

The  United  States  are  a  sovereign  and  independent  nation,  and  are 
vested  by  the  Constitution  with  the  entire  control  of  international 
relations,  and  with  all  the  powers  of  government  necessary  to  main- 
tain that  control  and  to  make  it  effective.  The  only  government  of 
this  country,  which  other  nations  recognize  or  treat  with,  is  the 
government  of  the  Union;  and  the  only  American  flag  known 
throughout  the  world  is  the  flag  of  the  United  States. 

The  power  to  exclude  or  to  expel  aliens,  being  a  power  affecting 
international  relations,  is  vested  in  the  political  departments  of  the 
government,  and  is  to  be  regulated  by  treaty  or  by  act  of  Congress, 
and  to  be  executed  by  the  executive  authority  according  to  the  regu- 
lations so  established,  except  so  far  as  the  judicial  department  has 
been  authorized  by  treaty  or  by  statute,  or  is  required  by  the 
paramount  law  of  the  Constitution,  to  intervene. 

In  view  of  that  decision  \Chae  Chan  Ping  v.  U.  S.,  1888,  581], 
which,  as  before  observed,  was  a  unanimous  judgment  of  the  court, 
and  which  had  the  concurrence  of  all  the  justices  who  had  delivered 
opinions  in  the  cases  arising  under  the  acts  of  1882  and  3884,  it 
appears  to  be  impossible  to  hold  that  a  Chinese  laborer  acquired, 
under  any  of  the  treaties  or  acts  of  Congress,  any  right,  as  a  denizen 
or  otherwise,  to  be  and  remain  in  this  country,  except  by  the  license, 
permission  and  sufferance  of  Congress,  to  be  withdrawn  whenever,  in 
its  opinion,  the  public  welfare  might  require  it. 

By  the  law  of  nations,  doubtless,  aliens  residing  in  a  country,  with 
the  intention  of  making  it  a  permanent  place  of  abode,  acquire,  in  one 
sense,  a  domicil  there;  and,  while  they  are  permitted  by  the  nation 
to  retain  such  a  residence  and  domicil,  are  subject  to  its  laws,  and 
may  invoke  its  protection  against  other  nations.  This  is  recognized 
by  those  publicists  who,  as  has  been  seen,  maintain  in  the  strongest 
terms  the  right  of  the  nation  to  expel  any  or  all  aliens  at  its  pleasure. 
Vattel,  lib.  1,  c.  19,  §  213;  1  Phillimore,  c.  18,  §  321;  Mr.  Marcy,  in 
Koszta^s  Case,  Wharton's  International  Law  Digest,  §  198.  See,  also, 
Lau  Oiv  BewY.  United  States,  144  U.  S.  47,  62;  Merlin,  Repertoire 
de  Jurisprudence,  Domicile,  §  13,  quoted  in  the  case,  above  cited,  of 
In  re  Adam,  1  Moore  V.  C.  460,  472,  473. 


CHAP.  IV.]  FONG    YUE   TING   V.    UNITED   STATES.  389 

Chinese  laborers,  therefore,  like  all  other  aliens  residing  in  the 
United  States  for  a  shorter  or  longer  time,  are  entitled,  so  long  as 
they  are  permitted  by  the  government  of  the  United  States  to  remain 
in  the  country,  to  the  safeguards  of  the  Constitution,  and  to  the  pro- 
tection of  the  laws,  in  regard  to  their  rights  of  i:)erson  and  of  prop- 
erty, and  to  their  civil  and  criminal  responsibility.  But  they 
continue  to  be  aliens,  having  taken  no  steps  towards  becoming 
citizens,  and  incapable  of  becoming  such  under  the  naturalization 
laws;  and  therefore  remain  subject  to  the  power  of  Congress  to 
expel  them,  or  to  order  them  to  be  removed  and  deported  from  the 
country,  whenever  in  its  judgment  their  removal  is  necessary  or 
expedient  for  the  public  interest. 

Nothing  inconsistent  with  these  views  was  decided  or  suggested  by 
the  court  in  C/it/  Lung  v.  Freeman,  92  U.  S.  275,  or  in  Yick  Wo  v. 
Hojjkins,  118  U.  S.  356,  cited  for  the  appellants. 

In  C/u/  L%ing  v.  Freeman,  a  statute  of  the  State  of  California, 
restricting  the  immigration  of  Chinese  persons,  was  held  to  be  uncon- 
stitutional and  void,  because  it  contravened  the  grant  in  the  Consti- 
tution to  Congress  of  the  power  to  regulate  commerce  with  foreign 
nations. 

In  Yick  TFo  v.  Hopkins,  the  point  decided  was  that  the  Fourteenth 
Amendment  of  the  Constitution  of  the  United  States,  forbidding  a,nj 
State  to  deprive  any  person  of  life,  liberty  or  property  without  due 
process  of  law,  or  to  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws,  was  violated  by  a  municipal  ordinance 
of  San  Francisco,  which  conferred  upon  the  board  of  supervisors 
arbitrary  power,  without  regard  to  competency  of  persons  or  to 
fitness  of  places,  to  grant  or  refuse  licenses  to  carry  on  public  laun- 
dries, and  which  was  executed  by  the  supervisors  by  refusing  licenses 
to  all  Chinese  residents,  and  granting  them  to  other  persons  under 
like  circumstances.  The  question  there  was  of  the  power  of  a  State 
over  aliens  continuing  to  reside  A^ithin  its  jurisdiction,  not  of  the 
power  of  the  United  States  to  put  an  end  to  their  residence  in  the 
country. 

Upon  careful  consideration  of  the  subject,  the  only  conclusion 
which  appears  to  us  to  be  consistent  with  the  principles  of  interna- 
tional law,  with  the  Constitution  and  laws  of  the  United  States,  and 
with  the  previous  decisions  of  this  court,  is  that  in  each  of  these 
cases  the  judgment  of  the  circuit  court,  dismissing  the  writ  of  habeas 
corpus,  is  right  and  must  be.  AfHrmed.' 

1  Dissenting  opinion  of  Mr.  Justice  Brewer  omitted.  —  Ed. 


390  NATIONALITY.  [PART  I. 

CITY   OF   MINNEAPOLIS  v.  EEUM. 
United    States  Cikcuit   Court  of  Appeals,  Eighth    Circuit,  1893. 

(56  Federal,  576.) 

Sanborn,  Circuit  Judge.  In  Lanz  v.  Randall,  4  Dill.  425,  Mr. 
Justice  Miller,  who  was  then  presiding  in  the  Circuit  Court  for  tlie 
District  of  Minnesota,  held  that  a  State  could  not  make  the  subject 
of  a  foreign  government  a  citizen  of  the  United  States,  and  that  a 
resident  of  Minnesota  who  was  born  a  subject  of  the  Grand  Duke  of 
Mecklenburg,  had  declared  his  intention  to  become  a  citizen  of  the 
United  States  many  years  before  he  brought  his  suit,  had  resided 
in  the  State  of  ^Minnesota  for  fifteen  years,  had  several  times  voted 
at  elections  held  in  that  State  where  the  constitution  of  the  State 
authorizes  such  residents  to  do  so  without  naturalization,  but  had 
never  applied  to  be  or  been  admitted  to  citizenship  under  the  Federal 
naturalization  laws,  was  still  an  alien,  and  a  subject  of  the  Grand  Duke 
of  Mecklenburg.  This  decision  has  been  followed  by  the  courts,  and 
acquiesced  in  by  the  profession.  It  is  now  vigorously  challenged  by 
counsel  for  plaintiff  in  error. 

Section  2,  art.  3,  of  the  Constitution  of  the  United  States,  provides 
that  the  judicial  power  of  the  nation  shall  extend  to  "controversies 
between  a  State  or  the  citizens  thereof  and  foreign  states,  citizens,  or 
subjects ; "  and  tlie  acts  of  Congress  of  March  3,  1887  (24  Stat.  552), 
and  of  August  13,  1888  (25  Stat.  433),  confer  jurisdiction  of  all  these 
controversies  in  cases  involving  over  82,000  upon  the  circuit  courts. 
Every  person  at  his  birth  is  presumptively  a  citizen  or  subject  of  the 
state  of  his  nativity,  and  where,  as  in  the  case  at  bar,  his  parents 
were  then  both  subjects  of  that  state,  the  presumption  is  conclusive. 
To  the  land  of  his  birth  he  owes  support  and  allegiance,  and  from  it 
he  is  entitled  to  the  civil  and  political  rights  and  privileges  of  a  citi- 
zen or  subject.  This  relation,  imposed  by  birth,  is  presumed  to  con- 
tinue until  a  change  of  nationality  is  proved.  Minor  v.  Happcrsett, 
21  Wall.  162,  167;  Vatt.  Law  Nat.  p.  101;  Morse.  Nat.  61,  125.  A 
change  of  nationality  cannot  be  made  by  the  individual  at  will.  Each 
nation  has  the  right  to  refuse  to  grant  the  rights  and  privileges  of 
citizenship  to  all  persons  not  born  '  upon  its  soil,  and,  if  it  deter- 
mines to  admit  them  to  those  rights  and  privileges,  it  may  fix  the 
terms  on  which  they  shall  be  conferred  upon  them.  Naturalization 
is  the  admission  of  a  foreign  subject  or  citizen  into  the  political  body 


CHAP.  IV.]  CITY    OF    MINNEAPOLIS    V.    REUM.  391 

of  a  nation^  aud  the  bestowal  upon  liim  of  the  quality  of  a  citizen  or 
subject. 

The  Fourteenth  Amendment  to  the  Constitution  of  the  United  States 
provides  that  "all  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States  and  of  the  State  wherein  they  reside."  As  the  plaintiff  was 
born  in  the  kingdom  of  Saxony,  of  parents  who  at  the  time  of  his  birth 
were  subjects  of  the  King  of  Saxon}^  he  is  not  a  citizen  of  the  United 
States  unless  he  has  been  naturalized  therein.  The  United  States,  in 
the  exercise  of  their  undoubted  right,  have  prescribed  the  conditions 
upon  compliance  with  which  an  alien  may  become  a  citizen  of  this 
nation.  The  act  of  Congress  of  April  14,  1802  (2  Stat.  153,  c.  28,  §  1 ; 
Rev.  St.  §  2165),  provides  that  '•  an  alien  may  be  admitted  to  become 
a  citizen  of  the  United  States  in  the  following  manner,  and  not  other- 
wise. First.  He  shall,  two  years  at  least  prior  to  his  admission,  de- 
clare before  a  proper  court  his  intention  to  become  a  citizen  of  the 
United  States,  and  to  renounce  his  allegiance  to  the  potentate  or  sov- 
ereignty of  which  he  may  be  at  the  time  a  citizen  or  subject.  Second. 
He  shall,  at  the  time  of  his  application  to  be  admitted,  declare,  on 
oath,  before  some  one  of  the  courts  above  specified,  that  he  will  support 
the  Constitution  of  the  United  States,  and  that  he  absolutely  and  en- 
tirely renounces  and  abjures  all  allegiance  and  fidelity  to  every  foreign 
prince,  potentate,  state,  or  sovereignty ;  and  particularly,  by  name,  to 
the  prince,  potentate,  state,  or  sovereignty  of  which  he  was  before 
a  citizen  or  subject,  which  proceedings  shall  be  recorded  by  the  clerk 
of  the  court.  Third.  It  shall  be  made  to  appear  to  the  satisfaction 
of  the  court  admitting  such  alien  that  he  has  resided  within  the 
United  States  five  years  at  least,  and  within  the  State  or  Terri- 
tory where  such  court  is  at  the  time  held  one  year  at  least,  and  that 
during  that  time  he  has  behaved  as  a  man  of  a  good,  moral  character, 
attached  to  the  principles  of  the  Constitution  of  the  United  States, 
and  well  disposed  to  the  good  order  and  happiness  of  the  same  ;  but 
the  oath  of  the  applicant  shall  in  no  case  be  allowed  to  prove  his 
residence." 

By  the  act  of  May  26,  1824  (4  Stat.  69,  c.  186,  §  1 ;  Eev.  St.  §  2167), 
it  is  provided  that : 

"  Any  alien,  being  under  the  age  of  twentj-'One  years,  who  has  re- 
sided in  the  United  States  three  years  next  preceding  his  arriving  at 
that  age,  and  who  has  continued  to  reside  therein  to  the  time  he  may 
make  application  to  be  admitted  a  citizen  thereof,  may,  after  he  ar- 
rives at  the  age  of  twenty -one  years,  and  after  he  has  resided  five 
years  within  the  United  States,  including  the  three  j^ears  of  his  mi- 
norit}-,  be   admitted   a  citizen    of  the  United  States,  without  having 


392  NATIONALITY.  [PART  L 

made  tlie  declaration  required  in  the  first  condition  of  section  twenty- 
one  hundred  and  sixty-five ;  but  such  alien  shall  make  the  declaration 
required  therein  at  the  time  of  his  admission,  and  shall  further  de- 
clare on  oath,  and  prove  to  the  satisfaction  of  the  court,  that,  for  two 
years  next  preceding,  it  has  been  his  bona  fide  intention  to  become  a 
citizen  of  the  United  States  ;  and  he  shall  in  all  other  respects  comply 
with  the  laws  in  regard  to  naturalization." 

There  is  no  other  provision  of  the  acts  of  Congress  under  which  this 
plaintiff  could  have  been  naturalized.  The  counsel  for  plaintiff  in 
error,  however,  alleges  that  he  became  a  citizen  of  the  United  States 
(1)  because  at  the  time  he  declared  his  intention  to  do  so  he  might 
have  been  admitted  to  citizenship,  under  the  provisions  of  section 
2167 ;  (2)  because  various  acts  of  Congress  have  conferred  certain 
privileges,  and  some  have  conferred  all  the  privileges,  of  a  citizen 
upon  foreign-born  residents  who  had  declared  their  intention  to  be- 
come citizens  ;  and  (3)  because  the  State  of  Minnesota  has  granted 
to  such  residents  practically  all  the  privileges  of  citizenship  in  its  power 
to  bestow. 

Before  this  plaintiff  could  become  a  naturalized  citizen,  the  contract 
of  allegiance  and  protection  that  the  relation  of  a  citizen  to  his  nation 
implies  must  be  made  between  him  and  the  United  States.  The  United 
States  have  prescribed  the  conditions  under  which  such  an  alien  may 
make  this  contract,  the  place  where,  and  the  manner  in  which,  it  shall 
be  made,  and  have  declared  that  it  can  be  made  on  those  conditions, 
and  in  that  manner,  and  not  otherwise.  Rev.  St.  §  2165.  The  condi- 
tions are  that  he  shall  declare,  on  oath,  that  he  will  support  the  Con- 
stitution ;  that  he  does  renounce  all  allegiance  to  every  foreign  prince, 
potentate,  state,  or  sovereignty,  and  particularly  to  that  one  of  which 
he  was  a  subject ;  that  it  shall  be  made  to  appear  to  the  court  that  he 
has  resided  in  the  United  States  five  years,  and  in  the  State  where  the 
court  is  held  one  year  ;  that  he  has  behaved  as  a  man  of  good  moral 
character  during  all  of  this  time,  attached  to  the  principles  of  the  Con- 
stitution of  the  United  States,  and  well  disposed  to  the  good  order  and 
happiness  of  the  same.  The  place  where  these  conditions  must  be 
complied  with  is  in  one  of  the  courts  of  record  named  in  the  acts  of 
Congress,  and  the  method  by  which  the  contract  is  to  be  made  is  by 
plenary  proof  to  that  court  of  a  compliance  with  these  conditions,  which 
must  be  evidenced  by  its  judgment.  The  plaintiff  has  complied  with 
none  of  these  terms.  He  has  not  even  applied  to  any  court  to  be  ad- 
mitted to  citizensliip.  He  has  not  consented  to  become  a  citizen  of  the 
United  States  on  the  terms  tliey  offer  to  liim,  or  on  any  terms,  but  he 
still  insists  he  is  not  a  citizen,  and  that  he  is  still  a  subject  of  the  King 
of  Saxony.     On  the  other  hand,  the  United  States  have  not  consented 


CHAP.  IV.]  CITY   OF    MINNEAPOLIS   V.    REUM.  393 

to  accept  the  plaintiff  as  a  citizen,  on  any  terms,  raucli  less  to  waiv^e  all 
the  essential  conditions  without  a  compliance  with  wliich  Congress  has 
declared  an  alien  cannot  be  naturalized.  The  minds  of  both  parties 
must  meet  to  make  a  contract,  and,  where  neither  party  consents,  there 
can  surely  be  no  agreement. 

That  the  plaintiff,  on  Oct.  25,  1890,  had  resided  in  jNIinnesota,  as 
boy  and  man,  long  enough  to  qualify  him  to  become  a  citizen  under 
section  2167,  is  not  material.  The  conclusive  answer  to  the  argument 
here  urged  is  that  the  declaration  of  an  intention  to  enter  into  a  new 
relation  for  which  parties  are  qualified  does  not  establish  the  rela- 
tion. A  man  and  woman  who  declare  their  intention  to  be  married 
at  some  future  time  do  not  thereby  become  husband  and  wife.  On. 
the  other  hand,  a  declaration  of  an  intention  to  enter  into  a  relation  or 
to  do  an  act  at  some  future  time  is  very  persuasive  evidence  that 
the  relation  was  not  entered  upon,  and  the  act  was  not  done,  at  the 
time  the  declaration  was  m.ade.  It  must  be  borne  in  mind  that  the 
only  effect  of  section  2167  was  to  relieve  the  plaintiff  from  waiting  two 
years  after  filing  his  declaration  before  being  admitted  to  citizenship. 
That  section  expressly  provides  that  in  all  other  respects  he  shall  com- 
ply with  the  laws  in  regard  to  naturalization.  The  plaintiff's  declara- 
tion on  October  25,  1890,  when  he  was  qualified  to  be  naturalized,  that 
he  intended  at  some  future  time  to  become  a  citizen,  coupled  with  the 
fact  that  he  did  not  then  apply  to  be  admitted  to  citizenship,  nor  com- 
ply with  a.ny  of  the  conditions  prescribed  by  law  for  his  naturalization, 
compels  the  conclusion  that  he  did  not  then  denationalize  himself,  but 
tnat  he  still  remained  a  foreign  subject. 

That  Congress,  in  various  acts,  has  conferred  certain  privileges  and 
imposed  certain  burdens  upon  "  persons  of  foreign  birth  who  shall 
have  declared  their  intention  to  become  citizens,"  at  the  same  time 
that  it  conferred  like  privileges  or  imposed  like  burdens  upon  our  own 
citizens,  as  in  the  act  of  March  3,  1803,  (12  Stat.  731,)  where  all  able- 
bodied  male  citizens  of  the  United  States,  and  "  persons  of  foreign 
birth  who  shall  have  declared  their  intention  to  become  citizens  under 
and  in  pursuance  of  the  laws  thereof,"  between  certain  ages,  are  de- 
clared to  constitute  the  national  forces,  and  as  in  the  patent  laws  (Rev. 
St.  §  4904),  the  pre-emption  laws  (id.  §  2259),  and  in  the  mining 
laws  (id.  §  2289),  where  certain  privileges  are  conferred  on  citizens  of 
the  United  States,  and  "those  who  have  declared  their  intention  to 
become  such,"  in  no  way  militates  against,  but  strongly  supports,  the 
correctness  of  our  conclusion,  because,  if  foreign-born  residents,  by  de- 
claring their  intention  to  become  citizens^  could  ipso  facto  become 
such,  it  would  have  been  futile  to  name  them  in  all  of  these  acts  as  a 
class  distinct  from  our  citizens.     That  Congress  has,  by  various  special 


394  NATIONALITY.  [PART  I. 

acts,  many  of  which  are  referred  to  in  the  opinion  of  Chief  Justice 
Fuller  in  Boyd  v.  Xehraska,  143  U.  S.  158,  12  Sup.  Ct.  Rep.  375,  natural- 
ized certain  classes  of  persons  who  had  not  complied  with  the  terms 
of  the  general  laws  on  this  subject,  is  not  important  here,  because  the 
plaintiff  is  not  a  member  of  any  class  thus  naturalized.  Xor  is  the 
decision  in  Boyd  v.  Xehraska,  siqjra,  in  point  in  this  case,  because  Gov- 
ernor Boyd  was  there  held  to  be  one  of  a  class  of  foreign -born  residents 
that  was  naturalized  by  the  acts  of  Congress  admitting  the  State  of 
Nebraska  into  the  Union.  These  acts  conferred  the  rights  of  citizen- 
ship upon  foreign-born  residents  of  Nebraska  who  had  declared  their 
intention  to  become  citizens.    The  plaintiff  was  a  resident  of  Minnesota. 

A  single  argument  remains  to  be  noticed,  and  that  is  that  the  State 
of  Minnesota  has  conferred  on  plaintiff  the  elective  franchise,  the  right 
to  hold  any  office  in  its  gift,  and,  in  reality,  all  the  rights  and  privi- 
leges of  citizenship  in  its  power  to  bestow ;  and  therefore  it  is  said  he 
is  a  citizen  of  that  State,  and  not  a  foreign  subject,  and  the  Federal 
court  has  no  jurisdiction  of  this  action.  It  may  be  conceded  that  a 
State  may  confer  on  foreign  citizens  or  subjects  all  the  rights  and 
privileges  it  has  the  power  to  bestow,  but,  when  it  has  done  all  this,  it 
has  not  naturalized  them.  They  are  foreign  citizens  or  subjects  still, 
within  the  meaning  of  the  Constitution  and  laws  of  the  United  States, 
and  the  jurisdiction  of  the  Federal  courts  over  controversies  between 
them  and  citizens  of  the  States  is  neither  enlarged  nor  restricted  by  the 
acts  of  the  State.  The  power  to  naturalize  foreign  subjects  or  citizens 
was  one  of  the  powers  expressly  granted  by  the  States  to  the  national 
government.  By  section  8,  art.  1,  of  the  Constitution  of  the  United 
States,  it  was  provided  that  "  the  Congress  shall  have  the  power  ta 
establish  a  uniform  rule  of  naturalization."  Congress  has  exercised 
this  power,  established  the  rule,  and  expressly  declared  that  foreign- 
born  residents  may  be  naturalized  by  a  compliance  with  it,  and  not 
otherwise.  This  power,  like  the  power  to  regulate  commerce  among 
the  States,  was  carved  out  of  the  general  sovereign  power  held  by  the 
States  when  this  nation  was  formed  and  granted  by  the  Constitution 
to  the  Congress  of  the  United  States.  It  thus  vested  exclusively  in 
Congress,  and  no  power  remained  in  the  States  to  change  or  vary  the 
rule  of  naturalization  Congress  established,  or  to  authorize  any  foreign 
subject  to  denationalize  himself,  and  become  a  citizen  of  the  United 
States,  without  a  compliance  with  the  conditions  Congress  had  pre- 
scribed. Dred  Scott  v.  Sandford,  19  How.  393,  405;  Slaughter  House 
Cases,  IG  Wall.  36,  73;  2n7wr  v.  1  I appersett,  21  How.  162;  Boydy.  Ne- 
braska, 143  U.  S.  135,  160,  12  Sup.  Ct.  Rep.  375. 

In  like  manner,  the  States  granted  to  the  judiciary  of  the  nation  the 
power  to  determine  a  controversy  between  a  State  or  citizens  thereof 


CHAP.  IV.]  CITY   OF   MINNEAPOLIS    V.    REUM.  395 

and  foreign  states,  citizens,  or  subjects  (Const.  U.  S.  art.  3,  §  2),  and 
Congress  conferred  that  power  upon  the  circuit  courts.  The  extent 
of  the  jurisdiction  of  those  courts  is  measured  by  the  Constitution 
and  the  acts  of  Congress.  A  foreign-born  resident,  who  has  not  been 
naturalized  according  to  the  acts  of  Congress,  is  not  a  "citizen"  of  the 
United  States  or  of  a  State,  within  the  definition  given  by  the  Four- 
teenth Amendment  to  the  Constitution,  but  remains  a  foreign  subject 
or  citizen  ;  and  any  controversy  between  liim  and  a  citizen  of  a  State 
which  involves  a  sufficient  amount  is  thus  clearly  within  the  jurisdic- 
tion of  the  circuit  courts,  under  any  fair  construction  of  the  Constitu- 
tion and  laws  of  the  United  States.  The  jurisdiction  thus  conferred 
it  is  not  in  the  power  of  any  State,  by  its  legislative  or  other  action, 
to  take  away,  restrict,  or  enlarge,  and  the  action  of  the  State  of  Min- 
nesota regarding  the  citizenship  of  the  plaintiff  was  not  material  in 
this  case.  Tuland  v.  Spraffue,  12  Pet.  300,  328  ;  Cowless  v.  Mercer 
Co.,  7  Wall.  118;  RaUicay  Co.  v.  Whitton,  13  Wall.  270,  286;  Phelps 
v.  Oahs,  117  U.  S.  236,  239,  6  Sup.  Ct.  Kep.  714;  O'Connell  v.  Reed,  56 
Fed.  Rep.  531. 

The  result  is  that  the  power  granted  to  Congress  by  article  1,  §  8,  of 
the  Constitution  of  the  United  States,  to  establish  a  uniform  rule  of 
naturalization,  is  exclusive ;  and  the  naturalization  laws  enacted  by 
Congress  in  the  exercise  of  this  power  constitute  the  only  rule  by 
which  a  foreign  subject  may  become  a  citizen  of  the  United  States  or 
of  a  State,  within  the  meaning  of  the  Federal  Constitution  and  laws.  It 
is  not  in  the  power  of  a  State  to  denationalize  a  foreign  subject  who  has 
not  complied  with  the  Federal  naturalization  laws,  and  constitute  him  a 
citizen  of  the  United  States  or  of  a  State,  so  as  to  deprive  the  Federal 
courts  of  jurisdiction  over  a  controversy  between  him  and  a  citizen  of  a 
State,  conferred  upon  them  by  article  3,  §  2,  of  the  Constitution  of  the 
United  States,  and  tlie  acts  of  Congress. 

A  foreign  subject  who  is  qualified  to  become  a  citizen  of  the  United 
States,  under  section  2167  of  the  Revised  Statutes,  does  not  become 
such  by  filing  his  declaration  of  intention  so  to  do.  That  section  re- 
quires that  he  shall  renounce  allegiance  to  the  sovereignty  of  which  he 
he  is  a  subject,  take  the  oath  of  allegiance  to  th:'  United  States,  and 
comply  with  the  other  conditions  prescribed  in  the  second  and  third 
paragraphs  of  section  2165  of  the  Revised  Statutes,  in  order  to  become 
naturalized ;  and  until  he  does  so  he  remains  a  foreign  subject. 

The  court  below  was  right  in  denying  the  motion  to  dismiss  this 
action  for  want  of  jurisdiction,  and  the  judgment  below  is  affirmed, 
with  costs.^ 

1  According  to  Boyd  v.  Thayer,  1891,  14.3  U.  S.  1C5,  p.  162,  "Naturalization  is  tlie 
act  of  adopting  a  foreigner,  and  clothing  him  with  the  privileges  of  a  native  citizen. 


396  NATIONALITY.  [PART  I. 

In  Re   MOSES. 
United  States  Circuit  Court,  S.  D.  New  York,  1897. 

(83  Federal,  995.) 

Petition  of  Marcus  Moses  for  writ  of  habeas  corpus. 

Lacombe,  Circuit  Judge.  The  act  of  Aug.  18,  1894,  c.  301  (28  Stat. 
390),  provides  that: 

"  In  every  case  where  an  alien  is  excluded  from  admission  into  the 
United  States  under  any  law  or  treaty  now  existing  or  hereafter  made, 
the  decision  of  the  appropriate  immigration  or  custom  officers,  if  ad- 
verse to  the  admission  of  such  alien,  sliall  be  final,  unless  reversed  on 
appeal  to  the  Secretary  of  the  Treasury." 

If,  therefore,  the  petitioner's  wife  and  children  are  "  aliens,"  this 
court  cannot  inquire  into  the  correctness  of  the  decision  of  the  immi- 
gration officers.  Levi  Moon  Sing  v.  U.  S.,  158  U.  S.  540,  15  Sup.  Ct. 
9G7.     In  other  words,  the  only  jurisdictional  facts  which  it  is  necessary 

*  *  *.  Congress,  in  the  exercise  of  the  power  to  establish  a  uniform  rule  of  naturaliza- 
tion, has  enacted  general  laws  under  which  individuals  may  be  naturalized,  but  tiie 
instances  of  collective  naturalization  by  treaty  or  by  statute  are  numerous.  *  *  * 
Manifestly  the  nationality  of  tlie  inhabitants  of  territory  acquired  by  conquest  or 
cession  becomes  that  of  the  government  under  whose  dominion  they  pass,  subject  to 
the  right  of  election  on  their  part  to  retain  tiieir  former  nationality  by  removal  or 
otherwise,  as  may  be  provided."  The  learned  Chief  Justice  proceeds  to  an  enumera- 
tion of  the  many  instances  of  collective  naturalization  in  our  history.  A  much  shorter 
and  more  recent  discussion  of  the  subject  (collective  naturalization  on  annexation  of 
Texas)  is  found  in  Cuntzen  v.  U.  S.,  1900,  179  U.  S.  191-196.  See,  also,  Behrensmeyer 
V.  Kreilz,  1891,  135  111.  591. 

Chancellor  Kent  said,  in  considering  the  subject  of  naturalization  ;  "  Perhaps  there 
might  be  difficulties  also  as  to  the  copper-colored  natives  of  America,  or  the  yellow  or 
tawney  races  of  Asiatics,  and  it  may  well  be  doubted  whether  any  of  them  are  white 
persons,  within  the  purview  of  the  law."  (2  Com.  73.)  The  act  of  Congress  of  May  6, 
1882,  removed  the  doubt  as  to  "the  yellow  or  tawny  races  of  Asiatics"  by  providing 
"  that  hereafter  no  State  court  or  court  of  the  United  States  shall  admit  Chinese  to 
citizenship  ;  and  all  laws  in  conflict  with  this  act  are  hereby  repealed."  (22  Stat.  61  ; 
In  re  Suito,  1894,  02  Fed.  126.)  The  African  is  covered  by  section  2109  of  the  Revised 
Statutes :  "The  provisions  of  this  title  shall  apply  to  aliens  (being  free  white  persons, 
[In  re  Camille,  1880,  6  Fed.  256]  and  to  aliens)  of  African  nativity,  and  to  persons  of 
African  descent."  The  "  copper-colored  natives  of  America  "  are  statuteless ,  but  In 
re  liodrit/ncz,  1807,  81  Fed.  337  it  was  decided  that  a  Mexican  was  eligible  to  citizen- 
ship, even  although  he  could  neither  read  nor  write.  "  Congress  has  not  seen  fit," 
said  the  learned  judge,  "  to  require  of  applicants  for  naturalization  an  educational 
qualification,  and  courts  should  be  careful  to  avoid  judicial  legislation." 

On  the  naturalization  of  women  by  marriage,  see  Petjuiynot  v.  Ctty  of  Detroit,  1883, 
lOFed.  211.  — Ed. 


CHAP.  IV,]  IN    RE   MOSES.  ,397 

for  the  respondent  to  establish  in  a  proceeding  of  this  character  are  — 
First,  that  the  person  seeking  admission  is  an  alien ;  and,  second,  that 
the  immigration  officers  made  their  decision  in  the  way  in  which  the 
statute  requires.  It  is  no  longer  necessary  for  the  respondent  to  offer 
proof  in  this  court  that  such  person  is  an  immigrant,  as  was  the  case 
before  the  passage  of  the  act  of  1894,  supra,  and  while  the  earlier  acts 
only  were  in  force.  The  decisions  of  this  court  cited  on  the  brief 
{In  re  MartorelU,  63  Fed.  437 ;  In.  re  Maiola,  67  Fed.  114)  were  ren- 
dered under  the  earlier  acts,  and  are  no  longer  applicable. 

The  petitioner  relies  upon  an  exception  contained  in  the  statute 
which  excludes  persons  suffering  from  a  loathsome  or  contagious 
disease,  or  persons  likely  to  become  a  public  charge,  in  these  words: 

"But  this  section  shall  not  be  held  to  exclude  persons  living  in  the 
United  States  from  sending  for  a  relative  or  friend,  who  is  not  of  the 
excluded  classes,"  »S:c. 

But  under  the  act  of  1894  the  decision  of  the  immigration  officers 
that  a  person  seeking  admission  is  of  the  excluded  class  is  not  review- 
able in  the  courts. 

It  is  further  contended  that  petitioner  is  not  an  alien,  and  that,  there- 
fore, his  wife  and  children  are  not  aliens.  Undoubtedly  the  citizen- 
ship of  his  wife  and  children  is  the  same  as  his  own;  but  upon  the 
record  it  does  not  appear  that  the  petitioner  is,  as  he  contends,  a  citizen 
of  the  United  States.  He  began  as  an  alien,  —  a  subject  of  the  King 
of  Eoumania.  He  did  not  change  his  condition  nor  his  allegiance  by 
merely  coming  to  this  country  nor  by  residing  here.  Nor  has  his 
declaration  of  intention  altered  the  situation.  He  does  not  by  that 
document  renounce  his  allegiance,  but  merely  declares  that  it  is  his 
intention  so  to  do  at  some  later  day  ;  and  so  long  as  his  foreign  alle- 
giance continues  he  remains  an  alien.  Lanz  v.  Randall,  4  Dill.  425, 
Fed.  Cas.  No.  8080 ;  Maloij  v.  Diiden,  25  Fed.  673 ;  City  of  Jrui7ie- 
apolls  V.  Beujn,  6  C.  C.  A.  31,  53  Fed.  576. 

The  writ  is  dismissed.* 

1  CnrHsle  v.  United  States,  1872,  16  Wall.  147,  154-156,  Mr.  Justice  Field  said:  — 
"The  claimants  were  residents  in  the  United  States  prior  to  the  commencement  of  the 
rebellion.  They  so  allege  in  their  petition  ;  they  were,  therefore,  bound  to  obey  all 
the  laws  of  the  country,  not  immediately  relating  to  citizenship,  during  their  sojourn 
in  it;  and  they  were  equally  amenable  with  citizens  for  any  infraction  of  those  laws. 
'The  rights  of  sovereignty  (Wildman,  Institutes  on  International  Law,  p.  40)  ex- 
tend to  all  persons  and  things  not  privileged  that  are  within  the  territory.  They 
extend  to  all  strangers  therein,  not  only  to  tliose  who  are  naturalized  and  to  those  who 
are  domiciled  therein,  having  taken  up  their  abode  with  the  intention  of  permanent 
residence,  but  also  to  those  whose  residence  is  transitory.  All  strangers  are  under  the 
protection  of  the  sovereign  while  they  are  within  liis  territories,  and  owe  a  temporary 
allegiance  in  return  for  that  protection.' 

"  By  allegiance  is  meant  the  obligation  of  fidelity  and  obedience  which  the  individual 


398  NATIONALITY.  ( PART  I. 


Skction  22.  —  Status  of  American  Indians. 


ELK   V.   WILKIXS. 
Supreme  Court  of  the  United  States,  1884. 

(112  Unitod  States  Reports,  94.) 

This  was  an  action  brought  by  an  Indian  in  the  Circuit  Court  of 
the  United  States  for  the  District  of  Nebraska,  against  the  registrar 
of  one  of  the  wards  of  the  city  of  Omaha,  for  refusing  to  register  him 
as  a  qualified  voter  therein. 

owes  to  the  government  under  which  he  lives,  or  to  his  sovereign,  in  return  for  the 
protection  he  receives.  It  may  be  an  absolute  and  permanent  obligation,  or  it  may  be 
a  quaUfied  and  temporary  one.  Tlie  citizen  or  subject  owes  an  absolute  and  perma- 
nent allegiance  to  his  government  or  sovereign,  or  at  least  until,  by  some  open  and 
distinct  act,  he  renounces  it  and  becomes  a  citizen  or  subject  of  anotlier  government 
or  anotlier  sovereign.  Tiie  alien,  whilst  domiciled  in  tlie  country,  owes  a  local  and 
temporary  allegiance,  which  continues  during  the  period  of  his  residence. 

"  Tills  obligation  of  temporary  allegiance  by  an  alien  resident  in  a  friendly  country  is 
everywhere  recognized  by  publicists  and  statesmen.  In  the  case  of  Thrasher,  a  citizen 
of  tlie  United  States  resident  in  Cuba,  who  complained  of  injuries  suffered  from  the  gov- 
ernment of  that  island,  Mr.  Webster,  then  Secretary  of  State,  made,  in  1851,  a  report 
to  the  President  in  answer  to  a  resolution  of  the  House  of  Representatives,  in  which 
he  said :  '  Every  foreigner  born  residing  in  a  country  owes  to  that  country  allegiance 
and  obedience  to  its  laws  so  long  as  lie  remains  in  it,  as  a  duty  upon  him  by  the  mere 
fact  of  his  residence,  and  that  temporary  protection  which  he  enjoys,  and  is  as  much 
bound  to  obey  its  laws  as  native  subjects  or  citizens.  This  is  the  universal  under- 
standing in  all  civilized  states,  and  nowhere  a  more  established  doctrine  than  in  this 
country.'  And  again  :  '  Independently  of  a  residence  with  intention  to  continue  such 
residence;  independently  of  any  domiciliation;  independently  of  the  taking  of  any 
oath  of  allegiance  or  of  renouncing  any  former  allegiance,  it  is  well  known  that,  by  the 
l)ublic  law,  an  alien  or  a  stranger-born,  for  so  long  a  time  as  lie  continues  within  the 
dominions  of  a  foreign  government,  owes  obedience  to  the  laws  of  that  government, 
and  may  be  punished  for  treason  or  other  crimes  as  a  native-born  subject  might  be, 
unless  his  case  is  varied  by  some  treaty  sti[)ulation  '  (Webster's  Works,  Vol.  VI_ 
p.  520).  This  same  doctrine  is  stated  in  Male's  Pleas  of  the  Crown  (Vol.1,  ch.  10), 
East's  Crown  Law  (Vol.  I.  ch.  2,  sec.  4),  and  Foster's  Discourse  upon  High  Treason 
(  sec.  2,  p.  185),  all  of  which  are  treatises  of  approved  merit. 

"  Such  being  the  established  doctrine,  the  claimants  here  were  amenable  to  the  laws 
of  the  United  States  prescribing  punishment  for  treason  and  for  giving  aid  and  com- 
fort to  the  rebellion.  They  were,  as  domiciled  aliens  in  the  country  prior  to  the  rebel- 
lion, under  the  obligation  of  fidelity  and  obedience  to  the  government  of  the  United 
States.  They  subsequently  took  their  lot  with  the  insurgents,  and  would  be  subject 
like  them  to  punishment  under  the  laws  they  violated  but  for  the  proclamation  of 


CHAP.  IV.]  ELK   V.    WTLKINS.  399 

]Mr.  Justice  Gray  delivered  the  opinion  of  the  court,  extracts  from 
which  are  as  follows  :  — - 

the  President  of  Dec.  25,  1868.  Tliat  proclamation,  in  its  comprehensive  terms,  in- 
chules  them  and  all  others  in  like  situation.  It  grants  'unconditionally,  and  without 
reservation,  to  all  and  to  every  person  who,  directly  or  indirectly,  participated  in  the 
late  insurrection  or  rehellion,  a  full  pardon  and  amnesty  for  the  offence  of  treason 
against  the  United  States,  or  of  adhering  to  their  enemies  during  the  late  civil  war, 
with  restoration  of  all  rights,  privileges,  and  immunities  under  the  Constitution  and 
the  laws  which  have  been  made  in  pursuance  thereof.'  " 

In  Lem  Moon  Sln(j  v.  United  States,  189i,  158  U.  S.  5.38,  547,  it  is  said  :  "  The  power 
of  Congress  to  exclude  aliens  altogether  from  the  United  States,  or  to  prescribe  the 
terms  and  conditions  upon  which  they  may  come  to  this  countr}-,  and  to  have  its  declared 
policy  in  that  regard  enforced  exclusively  througli  executive  officers,  without  judicial 
intervention,  is  settled  by  our  previous  adjudications.  Is  a  statute  passed  in  execu- 
tion of  that  power  any  less  applicable  to  an  alien,  who  has  acquired  a  commercial 
domicile  within  the  United  States,  but  who,  having  voluntarily  left  the  country, 
although  for  a  temporary  purpose,  claims  the  right  under  some  law  or  treaty  to 
reenter  it?  "We  think  not.  The  words  of  the  statute  are  broad  and  include  "every 
case"  of  an  alien,  at  least  every  Ciiinese  alien,  who,  at  the  time  of  its  passage,  is  out 
of  this  country,  no  matter  for  what  reason,  and  seeks  to  come  back.  He  is  none  the 
less  an  alien  because  of  his  having  a  commercial  domicile  in  this  country.  Wiiile  he 
lawfully  remains  here  he  is  entitled  to  the  benefit  of  the  guarantees  of  life,  liberty,  and 
property,  secured  by  the  Constitution  to  all  persons,  of  whatever  race,  within  tlie 
jurisdiction  of  the  United  States.  His  personal  rights  when  he  is  in  this  country  and 
such  of  his  property  as  is  here  during  his  absence,  are  as  fully  protected  by  the  su- 
preme law  of  the  land  as  if  he  were  a  native  or  naturalized  citizen  of  the  United  States. 
But  when  he  has  voluntarily  gone  from  the  country,  and  is  beyond  its  jurisdiction, 
being  an  alien,  he  cannot  reenter  the  United  States  in  violation  of  the  will  of  the  Gov- 
ernment as  expressed  in  enactments  of  the  law-making  power.  He  cannot,  by  reason 
merely  of  his  domicile  in  the  United  States  for  purposes  of  business,  demand  that  his 
claim  to  reenter  this  country  by  virtue  of  some  statute  or  treaty,  shall  be  determined 
ultimately,  if  not  in  the  first  instance,  by  tlie  courts  of  the  United  States,  rather  than 
exclusively  and  finally,  in  every  instance,  by  executive  officers  charged  by  an  act  of 
Congress  with  the  duty  of  executing  the  will  of  the  political  department  of  the  govern- 
ment in  respect  of  a  matter  wholly  political  in  its  character.  He  left  the  country  sub- 
ject to  the  exercise  by  Congress  of  every  power  it  possessed  under  the  Constitution. 

The  question  of  citizenship  has  frequently  arisen  in  cases  of  foreign  residents  who 
claim  immunity  attaclied  to  American  citizenship.  The  following  are  a  few  selected 
examples  : 

Uausd'mg's  Case  (1885),  in  which  it  was  held  that  children  born  in  the  United  States 
of  alien  parents,  and  never  dwelling  in  the  United  States,  are  not  citizens  thereof 
(2  Wharton's  Digest,  390);  Emhden's  Case  (1885)  held  that  children  born  abroad 
of  citizens  of  the  United  States,  and  continuing  to  reside  abroad,  are  not  citizens 
thereof  unless  they  elect  to  become  such  on  coming  of  age  (2  Wharton's  Digest,  410) ; 
and  in  A  Prussian  Subject's  Case  (1875),  it  was  held  by  the  Attorney-General  that  under 
the  treaty  of  1868  between  the  United  States  and  the  North  German  Confederation, 
a  Prussian  by  birth,  naturalized  in  the  United  States,  is  presumed  to  have  renounced 
liis  American  citizenship  if  he  returns  to  Prussia,  and  resides  there  two  years 
(2  Wharton's  Digest,  412). 

In  the  United  States  there  are  two  classes,  native  and  naturalized  citizens.  These 
possess  equal  rights  under  the  law,  Osboni  v.  U.  S.  Bank,  1824,  9  Wheat.  738,  827,  but 


400  NATIONALITY.  [PAET  I. 

"  *  *  *  The  question  then  is,  whether  an  Indian,  born  a  member  of 
one  of  the  Indian  tribes  within  the  United  States,  is,  merely  by  reason 

by  the  Constitution  only  the  native-born  are  eligible  to  the  presidency  and  vice-presi- 
dency. "  It  seems  to  have  grown  into  a  rule,"  says  Atty.-Gen.  Bradford,  in  1794,  "  that  a 
nation  ought  not  to  interfere  in  the  causes  of  its  citizens  brought  before  foreign  tribunals, 
excepting  in  the  case  of  a  refusal  of  justice  —  palpable  and  evident  injustice  —  or  a 
violation  of  rules  and  forms,"  and  in  Murray  v.  Charinivg  Betsy,  1804,  2  Cr.  64,  120, 
Chief  Justice  Marshall  says:  "The  American  citizen  who  goes  into  a  foreign  country, 
although  he  owes  local  and  tem|)orary  allegiance  to  that  country,  is  yet,  if  he  performs 
no  other  act  changing  his  condition,  entitled  to  the  protection  of  Ids  own  government; 
and  if,  without  the  violation  of  any  municipal  law,  he  should  be  oppressed  unjustly,  he 
would  have  a  right  to  claim  that  protection,  and  the  interposition  of  the  American 
Government  in  his  favor  would  be  considered  as  a  justifiable  interposition.  But  his 
situation  is  completely  changed  where,  by  his  own  act,  he  has  made  himself  the  sub- 
ject of  a  foreign  power." 

After  speaking  of  tiie  protection  the  citizen  enjoys  in  United  States,  Mr.  Justice  Miller 
says:  "  Another  privilege  of  a  citizen  of  the  United  States  is  to  demand  the  care  and 
protection  of  the  Federal  Government  over  his  life,  liberty  and  property  when  on  the  high 
seas  or  within  the  jurisdiction  of  a  foreign  government.  Of  this  there  can  be  no  doubt, 
nor  that  tiie  right  depends  upon  his  cliaracter  as  a  citizen  of  the  United  States  {Slaugh- 
ter House  Cases,  1872,  16  Wall.  30,  79-80).  See,  also,  the  case  of  71ie  Leghorn  Seiz- 
ures,  1892,  27  Ct.  of  CI.  224,  235-236,  241.  And  in  DeBode  v.  Reg.,  1851,  3  H.  L.  C. 
449,  405,  Lord  Chancellor  Truro  held  :  "  It  is  admitted  law  that  if  the  subject  of  a 
country  is  spoliated  by  a  foreign  government  he  is  entitled  to  obtain  redress  from  the 
foreign  government  through  the  means  of  his  own  government.  But  if,  from  weak- 
ness, timidity,  or  any  other  cause  on  tiie  part  of  his  own  government,  no  redress  is 
obtained  from  the  foreigner,  then  he  has  a  claim  against  his  own  country." 

The  alien,  as  well  as  his  property,  enjoys  an  equal  protection  before  the  law ;  for 
the  temporary  allegiance  which  he  owes  demands  in  return  protection  from  tlie  gov- 
ernment. To  what  extent  this  protection  is  enjoyed  the  above  cases  show.  If  tlie 
alien  temporarily  or  permanently  residing  in  foreign  parts  is  not  reciprocally  well 
treated,  the  government  whose  citizens  are  injured  may  expel  or  place  under  corre- 
sponding disability  citizens  of  the  offending  nation  within  its  limits,  or  it  may  demand 
througli  diplomatic  channels  tlieir  protection.  In  case  of  the  native-born,  this  is  a  per- 
fect right ;  in  case  of  naturalized  citizens  the  right  is  perfect  as  against  third  parties, 
but  imperfect  as  against  the  mother  country,  while  in  cases  of  mere  "  declaration  of 
intention"  and  incomplete  naturalization  the  claim  is  of  the  slightest.  The  following 
cases  will  perhaps  serve  to  make  this  clear  : 

Wagner's  Case,  1882  (2  Wharton's  Digest,  392),  to  the  effect  that  a  foreign  minor 
who  emigrates  to  and  becomes  naturalized  in  the  United  States,  may  on  returning  to 
liis  original  state  be  forced  to  perform  military  service  due  at  time  of  his  original  de- 
parture, but  that  it  would  be  highly  unreasonable  to  exact  the  performance  of  a 
service  or  duty  non-existent  or  inchoate  at  the  time  of  his  emigration. 

Koszta's  Case,  1853  (Cockburn's  Nationality,  118),  was  one  of  imperfect  naturaliza- 
tion, in  that  the  claimant  had  merely  declared  his  intention  to  become  a  citizen,  but 
had  not  as  yet  fully  complied  with  final  requirements  of  the  law.  It  appears  tliat  he 
was  a  Hungarian  refugee  of  1848-9  ;  that  he  was  domiciled  in  the  United  States ;  tliat 
he  had  previously  declared  his  intention  to  become  an  American  citizen ;  that  he  was 
temporarily  absent  from  the  United  States  ;  that  he  was  furnished  with  a  consular 
travelling  pass,  stating  that  he  was  entitled  to  American  protection. 

The  subsequent  proceedings  are  thus  described  by  Mr.  Justice  Miller,  in  Re  Neagle, 


CFAP.  IV.]  ELK   V.    WILKINS.  401 

of  his  birth  within  the  United  States,  and  of  his  afterwards  voluntarily 
separating  himself  from  his  tribe  and  taking  up  his  residence  among 
wliite  citizens,  a  citizen  of  the  United  States,  within  the  meaning  of 
the  fii'st  section  of  the  Fourteenth  Amendment  to  the  Constitution. 

"  Under  the  Constitution  of  the  United  States,  as  originally  estab- 
lished, '  Indians  not  taxed,'  were  excluded  from  the  persons  according 
to  whose  numbers  representatives  and  direct  taxes  were  apjjortioned 

1880,  13-5  U.  S.  1,  64  :  "One  of  tlie  most  remarkable  episodes  in  the  history  of  our 
foreign  relations,  and  which  has  become  an  attractive  historical  incident,  is  the  case  of 
Martin  Koszta,  a  native  of  Hungary,  who,  though  not  fully  a  naturalized  citizen  of  the 
United  States,  had  in  due  form  of  law  made  his  declaration  of  intention  to  become  a 
citizen.  While  in  Smyrna  he  was  seized  by  command  of  the  Austrian  consul-general  at 
that  place  and  carried  on  board  tlie  Ihissar,  an  Austrian  vessel,  where  he  was  held  in 
dose  confinement.  Captain  Ingraham,  in  command  of  the  American  sloop  of  war  5^ 
Louis,  arriving  in  port  at  this  critical  period,  and  ascertaining  tliat  Koszta  liad  with 
him  his  naturalization  papers,  demanded  his  surrender  to  him,  and  was  compelled 
to  train  his  guns  upon  tlie  Austrian  vessel  before  his  demand,  were  complied  wiiii.  It 
was,  however,  to  prevent  bloodshed,  agreed  that  Koszta  should  be  placed  in  the  hands 
of  the  French  consul,  subject  to  the  result  of  diplomatic  negotiations  between  Austria 
and  the  United  States.  The  celebrated  correspondence  between  Mr.  Marc}-,  Secretary 
of  State,  and  Chevalier  Hiilsemann,  the  Austrian  minister  [charge'  d'affaires]  at 
Washington,  wliich  arose  out  of  tiiis  affair  and  resulted  in  the  release  and  restoration 
to  liberty  of  Koszta  attracted  a  great  deal  of  public  attention,  and  the  position  assumed 
by  Mr.  Marcy  met  the  approval  of  the  country  and  of  Congress,  who  voted  a  gold 
medal  to  Captain  Ingraham  for  his  conduct  in  the  affair."  See,  further,  Magoon's 
Military  Occupation,  118-120,  and  for  the  diplomatic  correspondence  between  the  two 
governments,  2  Wharton's  Digest,  §§  175,  198. 

Koszta's  Case  e.xcited  at  the  time  and  since  much  unfavorable  and  some  favorable 
criticism  and  comment,  for  which  see  Hall's  Int.  Law,  2.51-254  and  Calvo,  Vol.  II. 
pp  45-47,  66,  142-145.  Professor  Pomeroy's  position  is  as  follows :  "The  discussion 
between  the  two  cabinets  w;i.*  long  and  somewhat  acrimonious.  But  I  believe  tiiat 
Mr.  Marcy  conducted  the  correspondence  with  so  much  ability  that  he  convinced  his 
opponents  .  .  .  Now,  although  Koszta's  crime  was  a  political  one,  ...  I  see  no  reason 
why  the  same  doctrine  would  not  apply  to  the  case  of  any  other  offender.  Doubtless, 
indeed,  our  government  would  not  have  exhibited  as  nmch  alacrity,  in  case  the  man 
had  been  a  common  murderer  or  thief,  but  they  certainly  might  have  done  so  with 
the  same  result.     International  Law,  25.3-2-58. 

Toiisig's  Case,  1854  (Lawrence's  Wheaton,  1863,  929),  was  simple :  he  was  an 
Austrian  by  birth  who  had  acquired  a  domicile  in  the  United  States,  and  although 
unnaturalized,  had  been  improperly  furnished  with  an  American  passport.  On  his 
return  to  Austria  he  was  arrested  and  charged  with  offences  committeil  before  emi- 
grating from  Austria.  The  difference  between  the  two  cases  is  sufficiently  plain. 
Tousig  voluntarilj'  subjected  himself  to  Austrian  jurisdiction;  Koszta  wisely  kept 
away  from  tlie  fatherland,  and  was  apprehended  by  Austrian  authorities  in  neutral 
territory.  In  Tousig's  case  the  American  Government  neither  should  nor  did  offer  pro- 
tection ;  in  Koszta's  case  it  protected  Koszta's  "inchoate  rights" — a  phrase  mucli 
employed  by  Fuller,  C.  J.,  in  Bo)/d  v.  T/iai/er,  1891,  143  U.  S.  135  —  against  violation 
ill  a  neutral  port.  If  Koszta  liad  returned  to  Austria,  the  cases  would  have  been  on 
all  fours.  —  Ed. 

26 


402  NATIONALITY.  [PART  L 

among  the  several  states ;  and  Congress  had  and  exercised  the  power 
to  regulate  commerce  with  the  Indian  tribes,  and  the  members  there- 
of, whether  within  or  without  the  boundaries  of  one  of  the  States  of 
the  Union.  The  Indian  tribes,  being  within  the  territorial  limits  of 
the  United  States,  were  not,  strictly  speaking,  foreign  states ;  but 
they  were  alien  nations,  distinct  political  communities,  with  whom 
the  United  States  might  and  habitually  did  deal,  as  they  thought  fit, 
either  through  treaties  made  by  the  President  and  Senate,  or  through 
acts  of  Congress  in  the  ordinary  forms  of  legislation.  The  members 
of  those  tribes  owed  immediate  allegiance  to  their  several  tribes,  and 
were  not  part  of  the  people  of  the  United  States.  They  were  in  a 
dependent  condition,  a  state  of  pupilage  resembling  that  of  a  ward 
to  his  guardian.  Indians  and  their  property  exempt  from  taxation 
by  treaty  or  statute  of  the  United  States,  could  not  be  taxed  by  any 
State.  General  acts  of  Congress  did  not  apply  to  Indians,  unless  so 
expressed  as  to  clearly  manifest  an  intention  to  include  them.  Con- 
stitution, art.  1,  sees.  2,  8 ;  art.  2,  sec.  2 ;  Cherokee  Nation  v.  Georgia^ 
5  Pet.  1 ;  Worcester  v.  Georgia,  6  Pet.,  515 ;  .  .  .  Croio  Dog's  Case,  109 
U.  S.  556  .   *  *  * 

"  The  alien  and  dependent  condition  of  the  members  of  the  Indian 
tribes  could  not  be  put  off  at  their  own  will,  without  the  action  or 
assent  of  the  United  States.  They  were  never  deemed  citizens  of 
the  United  States,  except  under  explicit  provisions  of  treaty"  or  stat- 
ute to  that  effect,  either  declaring  a  certain  tribe,  or  such  members 
of  it  as  chose  to  remain  behind  on  the  removal  of  the  tribe  westward, 
to  be  citizens,  or  authorizing  individuals  of  particular  tribes  to  be- 
come citizens  on  application  to  a  court  of  the  United  States  for 
naturalization  and  satisfactory  proof  of  fitness  for  civilized  life.  *  *  * 

"  Chief  Justice  Taney,  in  the  passage  cited  for  the  plaintiff  from 
his  opinion  in  Scott  v.  Sandford,  19  How.,  .893,  404,  did  not  affirm  or 
imply  that  either  the  Indian  tribes,  or  individual  members  of  those 
tribes,  had  the  right,  bej'ond  other  foreigners,  to  become  citizens  of 
their  own  will,  without  being  naturalized  by  the  United  States.  His 
words  were:  'They  '  (the  Indian  tribes)  'may  without  doubt,  like  the 
subjects  of  any  foreign  government,  be  naturalized  by  the  authority 
of  Congress,  and  become  citizens  of  a  State,  and  of  the  United  States ; 
and  if  an  individual  should  leave  his  nation  or  tribe,  and  take  up  his 
abode  among  the  white  population,  he  would  be  entitled  to  all  the 
rights  and  privileges  which  would  belong  to  an  emigrant  from  any 
other  foreign  people.'  But  an  emigrant  from  any  foreign  state  can- 
not become  a  citizen  of  the  United  States  without  a  formal  renun- 
ciation of  his  old  allegiance,  and  an  acceptance  by  the  United  States 
of  tliat  renunciation  through  such  form  of  naturalization  as  may  be 
required  by  law. 


CHAP.  IV.]  ELK   V.   WILKINS.  403 

"  The  distinction  between  citizenship  by  birth  and  citizenship  by 
naturalization  is  clearly  marked  in  the  provisions  of  the  Constitution, 
by  which  '  no  person,  except  a  natural  born  citizen  or  a  citizen  of  the 
United  States  at  the  time  of  the  adoption  of  this  Constitution,  shall 
be  eligible  to  the  office  of  President ; '  and  'the  Congress  shall  have 
power  to  establish  an  uniform  rule  of  naturalization.'  Constitu- 
tion, art.  2,  sec.  1 ;  art.  1,  sec.  8. 

"  By  the  Thirteenth  Amendment  of  the  Constitution  slavery  was 
prohibited.  The  main  object  of  the  opening  sentence  of  the  Four- 
teenth Amendment  was  to  settle  the  question,  upon  which  there  had 
been  a  difference  of  opinion  throughout  the  country  and  in  this  court, 
as  to  the  citizenship  of  free  negroes,  iScott  v.  Sand/ord,  19  How.,  393  ; 
and  to  put  it  beyond  doubt  that  all  persons,  white  or  black,  and 
whether  formerly  slaves  or  not,  born  or  naturalized  in  the  United 
States,  and  owing  no  allegiance  to  any  alien  power,  should  be  citizens 
of  the  United  States  and  of  the  State  in  which  they  reside.  /Slaugh- 
ter House  Cases,  16  Wall.,  36,  73  ;  Strauder  v.  West  Virginia,  600 
U.  S.,  303,  306. 

"  This  section  contemplates  two  sources  of  citizenship,  and  two 
sources  only ;  birth  and  naturalization.  The  persons  declared  to  be 
citizens  are  '  all  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,'  the  evident  meaning  of  these 
last  words  is  not  merely  subject  in  some  respect  or  degree  to  the 
jurisdiction  of  the  United  States,  but  completely  subject  to  their 
political  jurisdiction  and  owing  them  direct  and  immediate  allegiance. 
And  the  words  relate  to  the  time  of  birth  in  the  one  case,  as  they 
do  to  the  time  of  naturalization  in  the  other.  Persons  not  thus  sub- 
ject to  the  jurisdiction  of  the  United  States  at  the  time  of  birth 
cannot  become  so  afterwards,  except  by  being  naturalized,  either  indi- 
vidually, as  by  proceedings  under  the  naturalization  acts,  or  collec- 
tively, as  by  force  of  a  treaty  by  which  foreign  territory  is  acquired. 

"  Indians  born  within  the  territorial  limits  of  the  United  States, 
members  of,  and  owing  allegiance  to,  one  of  the  Indian  tribes  (an 
alien,  though  dependent,  power),  although  in  a  geographical  sense 
born  in  the  United  States,  are  no  more  'born  in  the  United 
States  and  subject  to  the  jurisdiction  thereof,'  within  the  meaning 
of  the  first  section  of  the  Fourteenth  Amendment,  than  the  children 
of  subjects  of  any  foreign  government  born  within  the  domain  of  that 
government,  or  the  children  born  within  the  United  States,  of  am- 
bassadors or  other  public  ministers  of  foreign  nations.  *  *  * 

"Such Indians,  then,  not  being  citizens  by  birth,  can  only  become 
citizens  in  the  second  way  mentioned  in  the  Fourteenth  Amendment, 
by  being  '  naturalized  in  the  United  States,'  by  or  under  some 
treaty  or  statute.  *  *  * 


404  NATIONALITY.  [PAIlT  I. 

"  The  act  of  July  27, 1868,  ch.  249,  declaring  the  right  of  expatriation 
to  he  a  natural  and  mherent  right  of  all  people,  and  reciting  that 
'in  the  recognition  of  this  principle  this  government  has  freely 
received  emigrants  from  all  nations,  and  invested  them  with  the  rights 
of  citizenship,'  while  it  affirms  the  right  of  every  man  to  expatriate 
himself  from  one  country,  contams  nothing  to  enable  him  to  become 
a  citizen  of  another,  without  being  naturalized  under  its  authority. 
15  Stat.,  223 ;  Rev.  Stat.,  §  1999. 

"The  provision  of  the  act  of  Congress  of  March  3,  1871,  ch.  120, 
that  'hereafter  no  Indian  nation  or  tribe  within  the  territory  of  the 
United  States  shall  be  acknowledged  or  recognized  as  an  independent 
nation,  tribe  or  power  with  whom  the  United  States  may  contract 
by  treaty,'  is  coupled  with  a  provision  that  the  obligation  of  any 
treaty  already  lawfully  made  is  not  to  be  therebj''  invalidated  or  im- 
paired, and  its  utmost  possible  effect  is  to  require  the  Indian  tribes 
to  be  dealt  with  for  the  future  through  the  legislative  and  not  through 
the  treaty-making  power.     16  Stat.,  566 ;  Rev.  Stat.,  §  2079.  *  *  * 

"  The  plaintiff,  not  being  a  citizen  of  the  United  States  under  the 
Fourteenth  Amendment  of  the  Constitution,  has  been  deprived  of  no 
right  secured  by  the  Fifteenth  Amendment,  and  cannot  maintain  this 
action. 

"Judgment  affirmed." 


UNITED  STATES  v.  KAGA3*L1. 

Supee:me  Couet  of  the  Uxited  States,  1886. 
(118  United  States  Beports,  375.) 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

"  The  case  is  brought  here  by  certificate  of  division  of  opinion 
between  the  Circuit  Judge  and  the  District  Judge  holding  the  Cir- 
cuit Court  of  the  United  States  for  District  of  California. 

"  Tlie  questions  certified  arise  on  a  demurrer  to  an  indictment 
against  two  Indians  for  murder  committed  on  the  Indian  reservation 
of  Iloopa  Valley,  in  the  State  of  California,  the  peison  murdered 
being  also  an  Indian  of  said  reservation.  Tliough  there  are  six  ques- 
tions certified  as  the  subject  of  difference,  the  point  of  them  all  is 
well  set  out  in  the  third  and  sixth,  which  are  as  follows : 

"  Whether  the  provisions  of  said  section  9  (of  the  act  of  Congress 
of  March  3, 1885),  making  it  a  crime  for  one  Indian  to  commit  murder 
upon  another  Indian,  upon  an  Indian  reservation  situated  wholly 


CHAP.  IV.]  UNITED   STATES   V.   KAGAMA.  405 

within  the  limits  of  a  State  of  tlie  Union,  and  malcing  such  Indian 
so  committinj^  the  crime  of  nuirder  witliin  and  npon  such  Indian 
reservation  'subject  to  tlie  samehiws'  and  subject  to  be  '  tried  in 
the  same  courts,  and  in  tlio  same  manner,  and.  subject  to  the  same 
penalties  as  are  all  other  persons'  committinp^  tlie  crime  of  murder 
'within  the  exclusive  jurisdiction  of  the  United  States,'  is  a  consti- 
tutional and  valid  law  of  the  United  States  ?' 

"  '6.  Whether  the  courts  of  the  United  States  have  jurisdiction 
or  authorit}'^  to  try  and  punish  an  Indian  belouijing  to  an  Indian 
tribe  for  connnitting  the  crime  of  murder  upon  another  Indian  be- 
longing to  the  same  Indian  tribe,  both  sustaining  the  usual  tribal 
relations,  said  crime  having  been  committed  upon  an  Indian  reserva- 
tion made  and  set  apart  for  the  use  of  the  Indian  tribe  to  which  said 
Indians  both  belong  ? ' 

"The  indictment  sets  out  in  two  counts  that  Kagama,  alias  Pactah 
Billy,  an  Indian,  murdered  lyouse,  alias  Ike,  another  Indian,  at  Hum- 
boldt county,  in  the  State  of  California,  within  the  limits  of  the 
Iloopa  Valley  Reservation,  and  it  charges  Mahawaha,  alias  Ben,  also 
an  Indian,  with  aiding  and  abetting  in  the  murder. 

"  The  law  referred  to  in  the  certificate  is  the  last  section  of  the 
Indian  appropriation  act  of  that  year,  and  is  as  follows  : 

"  '  9.  That  innnediately  upon  and  after  the  date  of  the  passage  of 
this  act  all  Indians  committing  against  the  person  or  property  of 
another  Indian  or  other  person  any  of  the  following  crimes,  namely, 
murder,  manslaughter,  rape,  assault  with  intent  to  kill,  arson,  burg- 
lary and  larceny,  within  any  territory  of  the  United  States,  and 
either  within  or  without  the  Indian  reservation,  shall  be  subject 
therefor  to  the  laws  of  said  Territory  relating  to  said  crimes,  and 
shall  be  tried  therefor  in  the  same  courts  and  in  the  same  manner, 
and  shall  be  subject  to  the  same  penalties,  as  are  all  other  persons 
charged  with  the  commission  of  the  said  crimes,  respectively ;  and 
the  said  courts  are  hereby  given  jurisdiction  in  all  such  cases;  and 
all  such  Indians  committing  any  of  the  above  crimes  against  the 
person  or  property  of  another  Indian  or  other  person,  within  the 
boundaries  of  any  State  of  the  United  States,  and  within  the  limits 
of  any  Indian  reservation,  shall  be  subject  to  the  same  laws,  tried  in 
the  same  courts  and  in  the  same  manner,  and  subject  to  the  same 
penalties,  as  are  all  other  persons  committing  any  of  the  above  crimes 
within  the  exclusive  jurisdiction  of  the  United  States.,  28  Stat. 
Ch.,  341,  m-2,  §  9,  385. 

"  The  above  enactment  is  clearly  separable  into  two  distinct  defini- 
tions of  the  conditions  under  which  Indians  may  be  punished  for  the 
same  crimes  as  defined  by  the  common  law.     The  first  of  these  is 


406  NATIONALITY.  ||pART  I. 

where  the  offence  is  committed  within  tlie  limits  of  a  territorial  gov- 
ernment, whetlier  on  or  off  an  Indian  reservation.  In  this  class  of 
cases  the  Indian  charged  with  tlie  crime  shall  be  judged  by  the  laws 
of  the  Territory  on  that  subject,  and  tried  by  its  courts.  This  propo- 
sition itself  is  new  in  legislation  of  Congress,  which  has  heretofore 
only  undertaken  to  punish  an  Indian  avIio  sustains  the  usual  relation 
to  his  tribe,  and  who  commits  the  offence  in  the  Indian  country,  or 
on  an  Indian  reservation,  in  exceptional  cases ;  as  where  the  offence 
was  against  the  person  or  property  of  a  white  man,  or  was  some  vio- 
lation of  the  trade  and  intercourse  regulations  imposed  by  Congress 
on  the  Indian  tribes.  It  is  new,  because  it  now  proposes  to  punish 
these  offences  when  they  are  committed  by  one  Indian  on  the  person 
or  property  of  another. 

"The  second  is  where  the  offence  is  committed  by  one  Indian 
against  the  person  or  property  of  another,  within  the  limits  of  a  State 
of  the  Union,  but  on  an  Indian  reservation.  In  this  case,  of  which 
the  State  and  its  tribunals  Avould  have  jurisdiction  if  the  oft'ence  was 
committed  by  a  white  man  outside  an  Indian  reservation,  the  courts 
of  the  United  States  are  to  exercise  jurisdiction  as  if  the  offence  had 
been  committed  at  some  place  within  the  exclusive  jurisdiction  of  the 
United  States:  The  first  clause  subjects  all  Indians  guilty  of  these 
crimes,  committed  within  the  limits  of  a  Territory,  to  the  laws  of 
that  Territory,  and  to  its  courts  for  trial.  The  second,  which  applies 
solely  to  offences  by  Indians  which  are  committed  within  the  limits 
of  a  State  and  the  limits  of  a  reservation,  subjects  the  offenders  to 
the  laws  of  the  United  States  i;)assed  for  the  government  of  places 
under  the  exclusive  jurisdiction  of  those  laws,  and  to  trial  by  the 
courts  of  the  United  States.  This  is  a  still  further  advance,  as  assert- 
ing this  jurisdiction  over  the  Indians  within  the  limits  of  the  States 
of  the  Union. 

"Although  the  offence  charged  in  this  indictment  was  committed 
within  a  State  and  not  within  a  Territory,  the  considerations  which 
are  necessary  to  a  solution  of  the  problem  in  regard  to  the  one  must 
in  a  large  degree  affect  the  other. 

"  The  Constitution  of  the  United  States  is  almost  silent  in  regard 
to  the  relations  of  the  government  which  was  established  by  it  to  the 
numerous  tribes  of  Indians  within  its  borders. 

"  In  declaring  the  basis  on  which  representation  in  the  lower  branch 
of  the  Congress  and  direct  taxation  should  be  apportioned,  it  was  fixed 
that  it  should  be  according  to  numbers,  excluding  Indians  not  taxed, 
which,  of  course,  excluded  nearly  all  of  that  race,  but  which  meant 
that  if  there  were  such  within  a  State  as  were  taxed  to  support  the 
government,  they  should  be  counted  for  representation,  and  in  the 


CHAP.  IV.]  UNITED   STATES    V.    KAGAMA.  407 

computation  for  direct  taxes  levied  by  the  United  States.  This 
expression,  excluding  Indians  not  taxed,  is  found  in  the  XlVth  amend- 
ment, where  it  deals  with  the  same  subject  under  the  new  conditions 
produced  by  the  emancipation  of  the  slaves.  Neither  of  these  shed 
much  light  on  the  power  of  Congress  over  the  Indians  in  their  exist- 
ence as  tribes,  distinct  from  the  ordinary  citizens  of  a  State  or  Ter- 
ritory. 

"  The  mention  of  Indians  in  the  constitution  which  has  received 
most  attention  is  that  found  in  the  clause  which  gives  Congress 
*  power  to  regulate  commerce  with  foreign  nations  and  among  the 
several  States,  and  with  the  Indian  tribes.' 

"  Tliis  clause  is  relied  on  in  the  argument  in  the  present  case,  the 
proposition  being  that  the  statute  under  consideration  is  a  regulation 
of  commerce  with  the  Indian  tribes.  But  w^e  think  it  would  be  a 
very  strained  construction  of  this  clause,  that  a  system  of  criminal 
laws  for  Indians  living  peaceably  in  their  reservations,  which  left 
out  the  entire  code  of  trade  and  intercourse  laws  justly  enacted 
under  that  provision,  and  established  punishments  for  the  common- 
law  crimes  of  murder,  manslaughter,  arson,  burglary,  larceny,  and 
the  like,  without  any  reference  to  their  relation  to  any  kind  of  com- 
merce, was  authorized  by  the  grant  of  power  to  regulate  commerce 
with  the  Indian  tribes.  While  we  are  not  able  to  see,  in  either  of 
these  clauses  of  the  Constitution  and  its  amendments,  any  delegation 
of  power  to  enact  a  code  of  criminal  law  for  the  punishment  of  the 
worst  class  of  crimes  known  to  civilized  life  when  committed  by 
Indians,  there  is  a  suggestion  in  the  manner  in  which  the  Indian 
tribes  are  introduced  into  that  clause,  which  may  have  a  bearing  on 
the  subject  before  us.  The  commerce  with  foreign  nations  is  dis- 
tinctly stated  as  submitted  to  the  control  of  Congress.  AYere  the 
Indian  tribes  foreign  nations?  If  so,  they  came  within  the  first  of 
the  three  classes  of  commerce  mentioned,  and  did  not  need  to  be 
repeated  as  Indian  tribes.  Were  they  nations,  in  the  minds  of  the 
framers  of  the  Constitution?  If  so,  the  natural  phrase  would  have 
been  '  foreign  nations  and  Indian  nations,'  or,  in  the  terseness  of 
language  uniformly  used  by  the  framers  of  the  instrument,  it  would 
naturally  have  been  '  foreign  and  Indian  nations.'  Ahd  so  in  the 
case  of  The  CheroJcee  Nation  v.  The  State  of  Georgia^  5  Pet.,  1,  20, 
brought  in  the  Supreme  Court  of  the  United  States,  under  the 
declaration  that  the  judicial  power  extends  to  suits  between  a  State 
and  foreign  states,  and  giving  to  the  Supreme  Court  original  juris- 
diction where  a  State  is  a  party,  it  was  conceded  that  Georgia  as  a 
State  came  within  the  clause,  but  held  that  the  Cherokees  were  not 
a  State  or  nation  within  the  meaning  of  the  Constitution,  so  as  to  be 
able  to  maintain  the  suit. 


408  NATIONALITY.  [PART  I. 

"But  these  Indians  are  within  the  geographical  limits  of  the  United 
States.  The  soil  and  the  people  within  these  limits  are  under  the 
political  control  of  the  Government  of  the  United  States,  or  of  the 
States  of  the  Union.  There  exist  within  the  broad  domain  of 
sovereignty  but  these  two.  There  may  be  cities,  counties,  and  other 
organized  bodies  with  limited  legislative  functions,  but  they  are  all 
derived  from,  or  exist  in,  subordination  to  one  or  the  other  of  these. 
The  territorial  governments  owe  all  their  powers  to  the  statutes  of 
the  United  States  conferring  on  them  the  powers  which  they  exercise, 
and  which  are  liable  to  be  withdrawn,  modified,  or  repealed  at  any 
time  by  Congress.  What  authority  the  State  governments  may  have 
to  enact  criminal  laws  for  the  Indians  will  be  presently  considered. 
But  this  power  of  Congress  to  organize  territorial  governments,  and 
make  laws  for  their  mhabitants,  arises  not  so  much  from  the  clause 
in  the  Constitution  in  regard  to  disposhig  of  and  making  rules  and 
regulations  concerning  the  Territory  and  other  property  of  the 
United  States,  as  from  the  ownership  of  the  country  in  which  the 
Territories  are,  and  the  right  of  exclusive  sovereignty  which  must 
exist  in  the  Xational  Government,  and  can  be  found  nowhere  else. 
Murphy  v.  Ramsey^  114  U.  S.,  15,  -14. 

"In  the  case  oi  American  Ins.  Co.  v.  Canter,  1  Pet.,  511,  54-2.  in 
which  the  condition  of  the  people  of  Florida,  then  nnder  a  territorial 
government,  was  under  consideration,  Marshall,  Chief  Justice,  said  : 
'  Perhaps  the  power  of  governing  a  Territory  belonging  to  the  United 
States,  which  has  not,  by  becoming  a  State,  acquired  the  means  of 
self-government,  may  result  necessarily  from  the  fact  that  it  is  not 
within  the  jurisdiction  of  any  particular  State,  and  is  within  the 
power  and  jurisdiction  of  the  United  States.  The  right  to  govern 
may  be  the  inevitable  consequence  of  the  right  to  acquire  Tenitory. 
"Whichever  may  be  the  source  whence  the  power  is  derived,  the 
possession  of  it  is  unquestioned.' 

"  In  the  case  of  the  Un  ited  States  v.  Rogers.,  4  How.,  567,  572,  where 
a  white  man  pleaded  in  abatement  to  an  indictment  for  murder 
committed  in  the  country  of  the  Cherokee  Indians,  tliat  he  had  been 
adopted  by  and  become  a  member  of  the  Cherokee  tribe.  Chief  Justice 
Taxey  said :  '  The  country  in  wiiich  the  crime  is  charged  to  have 
been  committed  is  a  part  of  the  territory  of  the  United  States,  and 
not  within  the  limits  of  any  particular  State.  It  is  true  it  is  occupied 
by  the  Cherokee  Indians.  But  it  has  been  assigned  to  them  by  the 
United  States  as  a  place  of  domicil  for  the  tribe  and  they  hold  with 
the  assent  of  the  United  States,  and  under  their  authority.'  After 
referring  to  the  policy  of  the  European  nations  and  the  United  States 
in  asserting  dominion  over  all  the  country  discovered  by  them,  and 


CHAP.  IV.]  UNITED   STATES    V.    KAGAMA.  409 

the  justice  of  this  course,  he  adds  :  'But  had  it  been  otherwise,  and 
were  the  right  and  the  propriety  of  exercising  this  power  now'  open 
to  question,  yet  it  is  a  question  for  tlie  law-making  and  pohtical  de- 
partments of  the  government,  and  not  for  the  judicial.  It  is  our 
duty  to  expound  and  execute  the  law  as  w^e  fuid  it,  and  we  think  it 
too  firmly  and  clearly  established  to  admit  of  dispute,  that  the  Indian 
tribes,  residing  wathin  the  territorial  limits  of  the  United  States,  are 
subject  to  their  authority,  and  when  the  country  occupied  by  one  of 
them  is  not  within  the  limits  of  one  of  the  States,  Congress  may  by 
law^  punish  any  offence  committed  there,  no  matter  whether  the 
offender  be  a  wliito  man  or  an  Indian,' 

"  The  Indian  reservation  in  the  case  before  us  is  land  l)ouc;-ht  by 
the  United  States  from  Mexico  by  the  treaty  of  Guadaloupe  Hidalgo, 
and  the  whole  of  California,  with  the  allegiance  of  its  inhabitants, 
many  of  whom  were  Indians,  was  transferred  by  that  treaty  to  the 
United  States. 

"  The  relation  of  the  Indian  tribes  living  within  the  borders  of 
the  United  States,  both  before  and  since  the  Kevolution,  to  the 
people  of  the  United  States  has  alwaj's  been  an  anomalous  one  and 
of  a  complex  character. 

"  Following  the  policy  of  the  European  governments  in  the  dis- 
covery of  America  towards  the  Indians  who  were  found  here,  tlie 
colonies  before  the  Revolution  and  the  States  and  the  United  States 
since,  have  recognized  in  the  Indians  a  possessory  right  to  the  soil 
over  Avhich  they  roamed  and  hunted  and  established  occasional  vil- 
lages. But  they  asserted  an  ultimate  title  in  the  land  itself,  by 
which  the  Indian  tribes  were  forbidden  to  sell  or  transfer  it  to  other 
nations  or  people  without  the  consent  of  this  paramount  authority. 
When  a  tribe  wished  to  dispose  of  its  land,  or  any  part  of  it,  or  the 
State  or  the  United  States  wished  to  purchase  it,  a  treaty  with  the  tribe 
was  the  only  mode  in  which  this  could  be  done.  The  United  States 
recognized  no  right  in  private  persons,  or  in  other  nations,  to  make 
such  a  purchase  by  treaty  or  otherwise.  "With  the  Indians  them- 
selves these  relations  are  equally  difficult  to  define.  They  Avere, 
and  always  have  been,  regarded  as  having  a  semi-independent  posi- 
tion when  they  preserved  their  triV)al  relations ;  not  as  States,  not 
as  nations,  not  as  possessed  of  the  full  attributes  of  sovereignty,  but 
as  a  separate  people  with  the  power  of  regulating  their  internal  and 
social  relations,  and  thus  far  not  brought  under  the  laws  of  the 
Union  or  of  the  State  within  wdiose  limits  they  resided. 

"  Perhaps  the  best  statement  of  their  position  is  found  in  the  two 
opinions  of  this  court  by  Chief  Justice  ^Marshall  in  the  case  of  the 
C/ierokee  Nation  v.  Georr/ia,  5  Pet.,  1,  and  in  the  case  of  Worcester  v. 


410  NATIONALITY.  [PART  I. 

State  of  Georgia,  6  Pet.,  515,  536.  These  opinions  are  exhaustive; 
and  in  the  separate  opinion  of  Mr.  Justice  Baldwin,  in  tlie  former,  is 
a  very  valuable  resume  of  the  treaties  and  statutes  concerning  the 
Indian  tribes  previous  to  and  during  the  confederation. 

"  In  the  first  of  the  above  cases  it  was  held  that  these  tribes  were 
neither  States  nor  nations,  had  only  some  of  the  attributes  of  sov- 
ereignty, and  could  not  be  so  far  recognized  in  that  capacity  as  to 
sustain  a  suit  in  the  Supreme  Court  of  the  United  States.  In  the 
second  case  it  was  said  that  they  were  not  subject  to  the  jurisdiction 
asserted  over  them  by  the  State  of  Georgia,  which,  because  they 
were  within  its  limits  where  they  had  been  for  ages,  had  attempted 
to  extend  her  laws  and  the  jurisdiction  of  her  courts  over  them. 

"  In  the  opinions  in  these  cases  they  are  spoken  of  as  '  wards  of 
the  nation,'  '  pupils,'  as  local  dependent  communities.  In  this  spirit 
the  United  States  has  conducted  its  relations  to  them  from  its 
organization  to  this  time.  But,  after  an  experience  of  a  hundred 
years  of  the  treaty-making  system  of  government,  Congress  has 
determined  upon  a  new  departure — to  govern  them  by  acts  of  Con- 
gress. This  is  seen  in  the  act  of  March  3,  1871,  embodied  in  §  2079 
of  the  Revised  Statutes  : 

'"No  Indian  nation  or  tribe,  within  the  territory  of  the  United 
States  shall  be  acknowledged  or  recognized  as  an  independent  na- 
tion, tribe,  or  power,  with  whom  the  United  States  may  contract 
by  treaty ;  but  no  obligation  of  any  treaty  lawfully  made  and 
ratified  with  any  such  Indian  nation  or  tribe  prior  to  March 
third,  eighteen  hundred  and  seventy-one,  shall  be  hereby  invalidated 
or  impaired.' 

"  The  case  of  Crov)  Dog,  109  U.  S.,  556,  in  which  an  agreement 
with  the  Sioux  Indians,  ratified  by  an  act  of  Congress,  was  supposed 
to  extend  over  them  the  laws  of  the  United  States  and  the  jurisdic- 
tion of  its  courts,  covering  murder  and  other  grave  crimes,  shows 
the  purpose  of  Congress  in  this  new  departure.  The  decision  in  that 
case  admits  that  if  the  intention  of  Congress  had  been  to  punish,  by 
the  United  States  courts,  the  murder  of  one  Indian  by  another,  the 
law  would  have  been  valid.  But  the  court  could  not  see,  in  the 
agreement  with  the  Indians  sanctioned  by  Congress,  a  purpose  to 
repeal  §  2146  of  the  Revised  Statutes,  which  expressly  excludes  from 
that  jurisdiction  the  case  of  a  crime  committed  by  one  Indian 
against  another  in  the  Indian  country.  The  passage  of  the  act  now 
under  consideration  was  designed  to  remove  that  objection,  and  to 
go  further  by  including  such  crimes  on  reservations  lying  within 
a  State. 

"  Is  this  latter  fact  a  fatal  objection  to  the  law  ?    The  statute  itself 


CHAP.  IV.]  UNITED   STATES   V.   KAGAMA.  411 

contains  no  express  limitation  upon  tlie  powers  of  a  State  or  the 
jurisdiction  of  its  courts.  If  tliere  be  any  limitation  in  either  of 
these,  it  grows  out  of  the  implication  arising  from  the  fact  that 
Congress  has  defined  a  crime  committed  within  the  State,  and 
made  it  punishable  in  the  courts  of  the  United  States.  Bat  Con- 
gress has  done  this,  and  can  do  it,  with  regard  to  all  offences  relat- 
ing to  matters  to  which  the  Federal  authority  extends.  Does  that 
authority  extend  to  this  case  ? 

"  It  will  be  seen  at  once  that  the  nature  of  the  offence  (murder)  is 
one  which  in  almost  all  cases  of  its  commission  is  punishable  by  the 
laws  of  the  States,  and  within  the  jurisdiction  of  their  courts.  The 
distinction  is  claimed  to  be  that  the  offence  under  the  statute  is 
committed  by  an  Indian,  that  it  is  committed  on  a  reservation  set 
apart  within  the  State  for  residence  of  the  tribe  of  Indians  by  the 
United  States,  and  the  fair  inference  is  that  the  offending  Indian 
shall  belong  to  that  or  some  otlier  tribe.  It  does  not  interfere  with 
the  process  of  the  State  Courts  within  the  reservation,  nor  with  the 
operation  of  State  laws  upon  white  people  found  there.  Its  effect 
is  confined  to  the  acts  of  an  Indian  of  some  tribe,  of  a  criminal  char- 
acter, committed  within  the  limits  of  the  reservation. 

"It  seems  to  us  that  this  is  within  the  competency  of  Congress. 
These  Indian  tribes  are  the  wards  of  the  nation.  They  are  com- 
munities dependent  on  tlie  United  States.  Dependent  largely  for 
their  daily  food.  Dependent  for  their  political  rights.  They  owe 
no  allegiance  to  the  States,  and  receive  from  them  no  protection. 
Because  of  the  local  ill-feeling,  the  people  of  the  States  where  they 
are  found  are  often  their  deadliest  enemies.  From  their  very  weak- 
ness and  helplessness,  so  largely  due  to  the  course  of  dealing  of  the 
Federal  Government  with  them  and  the  treaties  in  which  it  has  been 
promised,  there  arises  the  duty  of  protection,  and  with  it  the  power. 
This  has  always  been  recognized  by  the  Executive  and  by  Congress, 
and  by  this  Court  whenever  the  question  has  arisen. 

"  In  the  case  of  Worcester  v.  The  State  of  Georgia,  above  cited, 
it  was  held  that,  though  the  Indians  had  by  treaty  sold  their  land 
within  that  State,  and  agreed  to  remove  away,  which  tliey  had 
failed  to  do,  the  State  could  not,  while  they  remained  on  those 
lands,  extend  its  laws,  criminal  and  civil,  over  the  tribes  ;  that  the 
duty  and  power  to  compel  their  removal  was  in  the  United  States, 
and  the  tribe  was  under  their  protection,  and  could  not  be  subjected 
to  the  laws  of  the  State  and  the  process  of  its  courts. 

"  The  same  thing  was  decided  in  the  case  of  Felloios  v.  BlacJxsrn ith 
and  Others,  19  How.,  366.  In  this  case,  also,  the  Indians  had  sold 
their  lands  under  supervision  of  the  States  of  Massachusetts  and 


412  NATIONALITY.  [PART  I. 

of  Kew  York,  and  had  agreed  to  remove  within  a  given  time.  "When 
the  time  came  a  suit  to  recover  some  of  the  land  was  brought  in 
the  Supreme  Court  of  New  York,  which  gave  judgment  for  the 
plaintiff.  But  this  court  held,  on  writ  of  error,  that  the  State  could 
not  enforce  this  removal,  but  the  duty  and  the  power  to  do  so  was  in 
the  United  States.  See  also  the  case  of  the  Kansas  Indians,  o 
Wall.,  737;  Neiv  York  Indians,  5  Wall.,  761. 

"  The  power  of  the  general  government  over  these  remnants  of  a 
race  once  powerful,  now  weak  and  diminished  in  numbers,  is  nec- 
essary to  their  protection,  as  well  as  to  the  safety  of  those  among 
whom  they  dwell.  It  must  exist  in  that  government,  because  it 
never  has  existed  anywhere  else,  because  the  theater  of  its  exercise 
is  within  the  geographical  limits  of  the  United  States,  because  it  has 
never  been  denied,  and  because  it  alone  can  enforce  its  laws  on  all 
the  tribes. 

"We  answer  the  questions  propounded  to  us,  that  the  9th  section 
of  the  act  of  ^Mareh,  18S5.  is  a  valid  law  in  both  its  branches,  and 
that  the  Circuit  Court  of  the  United  States  for  the  District  of  Cali- 
fornia has  jurisdiction  of  the  offence  cliarged  in  the  indictment  in 
this  case.'^ 


Section  23.  —  Treaties  the  Law  of  the  Land. 


FOSTER  &  EL  AM  v.  XEILSOX,  1829. 

(2  Peters,  253  af  314.) 

Extract  from  judgment  of  ^Marshall,  C.  J.  — 

A  treaty  is  in  its  nature  a  contract  between  two  nations,  not  a 
legislative  act.  It  does  not  generally  effect,  of  itself,  the  object  to 
be  accomplished;  especially  so  far  as  its  operation  is  infraterritorial; 
but  is  carried  into  execution  by  tlie  sovereign  power  of  the  respective 
parties  to  the  instrument. 

In  the  United  States  a  different  principle  is  established.  Our 
Constitution  declares  a  treaty  to  be  the  law  of  the  land.  It  is,  con- 
sequently, to  be  regarded  in  courts  of  justice  as  equivalent  to  an  act 
of  the  legislature,  whenever  it  operates  of  itself  without  the  aid  of 

1  For  tlie  treaty  relations  of  tlie  United  States  witii  tlie  various  Imliuri  nations  and 
tribes,  see  2  Butler's  Treaty-Making  Power,  1902,  §§  401,  423  ;  for  tlie  leg-al  and 
political  conditions  of  the  tribal  Imlians,  see  tlie  late  Professor  Thayer's  two  articles  : 
"A  People  without  Law,"  68  Atlantic  Monthly  (1891),  540,  676  ;  2  Harvard  Law  Review 
(1888),  1G7;  "Tiie  Legal  Status  of  the  Indian,"  15  Am.  Law  Review  (1881),  21.  —  Ed. 


CHAP.  IV.]  FOSTER    AND    ELAM    V.    NEILSON".  413 

any  legislative  provision.  But  when  the  terms  of  the  stipulation 
import  a  contract  when  either  of  the  parties  engages  to  perform  a 
particular  act,  the  treaty  addresses  itself  to  the  political,  not  the 
judicial  department;  and  the  legislature  must  execute  the  contract 
before  it  can  become  a  rule  for  the  court.  ^ 

Mr.  Justice  Field,  in  Geofroij  v.  Il'vjgs,  1889, 133  U.  S.  25S,  2G6 : — 
That  the  treaty  power  of  the  United  States  extends  to  all  proper 
subjects  of  negotiation  between  our  government  and  the  governments 
of  other  nations,  is  clear.  It  is  also  clear  that  the  protection  which 
should  be  afforded  to  the  citizens  of  one  country  owning  property  in 
another,  and  the  manner  in  which  that  property  may  be  transferred, 
devised  or  inherited,  are  fitting  subjects  for  such  negotiation  and  of 
regulation  by  mutual  stipulations  between  the  two  countries.  As 
commercial  intercourse  increases  between  different  countries  the  resi- 
dence of  citizens  of  one  country  within  the  territory  of  the  other 
naturally  follows,  and  the  removal  of  their  disability  from  alienage 
to  hold,  transfer  and  inherit  property  in  such  cases  tends  to  promote 
amicable  relations.  Such  removal  has  been  within  the  present  cen- 
tury the  frequent  subject  of  treaty  arrangement.  The  treaty  power, 
as  expressed  in  the  Constitution,  is  in  tei'ms  unlimited,  except  by 
those  restraints  which  are  found  in  that  instrument  against  the  action 
of  the  government  or  of  its  departments,  and  those  arising  from  the 
nature  of  the  government  itself  and  of  that  of  the  States.  It  would 
not  be  contended  that  it  extends  so  far  as  to  authorize  what  the  Con- 
stitution forbids,  or  a  change  in  the  character  of  the  government  or  in 
that  of  one  of  the  States,  or  a  cession  of  any  portion  of  the  territory 
of  the  latter,  without  its  consent.     Fort  Leavenworth  Railroad  Co.  v. 

1  See  the  elaboration  of  this  definition  by  Mr.  Justice  Miller,  in  the  Head  Money 
Cases,  1884,  112  U.  S.  580,  597-599. 

The  Kesfor,  1901,  110  Fed.  432,  448,  Bradford,  District  Judge,  says:  "Treaty 
stipulations  between  the  United  States  and  foreign  nations  are  not  restrictive  of  the 
constitutional  power  of  Congress.  They  have  the  force  of  law,  but,  like  statutes,  are 
superseded  in  American  courts  by  subsequent  acts  of  Congress  conflicting  witli  them. 
Head  Moneij  Cases,  112  U.  S.  580;  W/utne/j  v.  Robertson,  124  U.  S.  190;  The  Chinese 
Exclusion  Case,  130  U.  S.  581 ;  Horner  v.  U.  S.,  14-3  U.  S.  570 ;  Fonf/  Yue  Ting  v.  U.  S., 
149  U.  S.  698.  It  goes  without  saying  that  mere  international  comity  not  incorporated 
in  any  convention  between  the  United  States  and  a  foreign  power  must  yield  to  a  statute 
witli  which  it  is  in  conflict.  There  is,  as  before  stated,  no  treaty  between  the  United 
States  and  Great  Britain  inconsistent  with  the  application  of  the  section  to  British 
vessels.  The  proviso  has  reference  to  treaties,  and  not  to  international  comity  not 
embodied  in  a  treaty.  Full  effect  must  therefore  be  given  to  the  proviso  tliat  '  this 
section  shall  apply  as  well  to  foreign  vessels  as  to  vessels  of  the  United  States,'  as  a 
constitutional  enactment  applying  to  the  prepayment  on  our  soil  or  in  our  waters  of 
the  wages  of  seamen  who  are  British  subjects  shipping  in  American  ports  on  British 
Tessels."  —  Ed. 


414  NATIONALITY.  [PART  I. 

Lowe,  114  U.  S.  525,  541.  But  with  these  exceptions,  it  is  not  per- 
ceived that  there  is  any  limit  to  the  questions  which  can  be  adjusted 
touching  any  matter  which  is  properly  the  subject  of  negotiation  with 
a  foreign  country.  Ware  v.  HyJton,  3  Dall.  199;  Chirac  v.  Chirac, 
2  Wheat.  259;  Hauensteln  v.  Lynham,  100  U.  S.  483;  8  Opinions 
Attys.   Gen.  417;   The  People  v.    Gerke,  5  California,  381. ^ 


CHAELES    WUNDERLE    et   al.    v.    CATHARINE 
WUNDERLE. 

Supreme  Court  of  Illinois,  1893. 

(144  Illinois,  40.) 

Mr.  Justice  Magruper  delivered  the  opinion  of  the  court. '^ 
Alexander  Wunderle,  the  owner  of  the  land  in  controversy,  died 
intestate  and  without  issue,  and  left  him  surviving  a  widow,  who  is 
the  appellee  herein,  and  one  brother  and  one  sister,  who  are  the  appel- 
lants herein.  His  deatli  took  place  in  January,  1891,  while  the  act 
of  1887  hereinafter  mentioned  was  in  force.  Have  appellants  become 
the  owners  of  one  undivided  half  of  the  land,  subject  to  the  widow's 
dower  and  homestead  rights  therein,  under  the  laws  of  this  State  in 
regard  to  the  descent  of  property  ?  The  decision  of  this  question 
depends  upon  the  decision  of  the  further  question,  whether  tlie  fact, 
that  the  appellants  were  non-resident  aliens  at  the  time  of  the  intes- 
tate's decease,  rendered  them  incapable  of  taking  real  estate  in 
Illinois  by  inheritance. 

By  chapter  4  of  the  Revised  Statutes  of  1845,  it  was  provided, 
that  "all  aliens,  residing  in  this  State,  may  take  by  deed,  will  or 
otherwise,  lands  and  tenements,  and  any  interest  therein,  and  alien- 
ate, sell,  assign,  and  transmit  the  same  to  their  heirs,  or  any  other 
persons,  whether  such  heirs  or  other  persons  be  citizens  of  the  United 
States  or  not,  in  the  same  manner  as  natural-born  citizens  of  the 
United  States  or  of  this  State  might  do;  and,  upon  the  decease  of 
any  alien  having  title,  or  interest  in,  any  lands  or  tenements,  such 
lands  and  tenements  shall  pass  and  descend  in  the  same  manner  as 
if  such  alien  were  a  citizen  of  the  United  States,  and  it  shall  be  no 

1  For  the  view  tliat  the  Federal  Government  is  not  limited  by  the  Constitution  of  the 
United  States  in  its  exercise  of  the  treaty-making  power,  see  Butler's  Treaty -Making 
Power.  —  Ed. 

2  Statement  of  case  omitted  and  only  so  much  of  the  opinion  is  given  as  relates  to 
the  operation  of  tlie  treaty.  —  Ed. 


CHAP.  IV.]  WUNDERLE   V.    WUNDERLE.  415 

objection  to  any  persons  having  an  interest  in  such  estate  that  they 
are  not  citizens  of  the  United  States;  but  all  such  persons  shall  have 
the  same  rights  and  remedies,  and  in  all  things  be  placed  on  the  same 
footing,  as  natural-born  citizens  and  actual  residents  of  the  United 
States."  It  will  be  noticed  that  the  act  of  1845  conferred  the  right 
to  take  lands  by  deed,  will,  or  otherwise,  and  to  alienate,  sell,  assign 
and  transmit  the  same,  upon  "a7Z  aliens  residing  in  this  State." 

By  an  act,  approved  Feb.  17,  1851,  the  foregoing  provision  of  said 
chapter  4  of  the  Revised  Laws  was  amended  by  leaving  out  the  words, 
"residing  in  this  State,"  after  the  words,  "all  aliens,"  so  as  to  confer 
the  right  to  take  lands  by  deed,  will  or  otherwise,  and  to  alienate, 
sell,  assign  and  transmit  the  same,  upon  all  aliens  whether  residing 
in  Illinois  or  not.  1  Starr  &  Cur.  Ann.  Stat.  chap.  6,  p.  264.  The 
act  of  1851  remained  in  force  until  1887.  On  June  16,  1S87,  the  Legis- 
lature passed  an  act,  which  went  into  force  on  July  1,  1887,  entitled 
"An  Act  in  regard  to  aliens,  and  to  restrict  their  right  to  acquire  and 
hold  real  and  personal  estate,  and  to  provide  for  the  disposition  of 
the  lands  now  owned  by  non-resident  aliens."  Laws  of  111.  of  1887, 
p.  5;  3  Starr  &  Cur.  Ann.  Stat.  chap.  6,  p.  60. 

By  the  tenth  section  of  the  act  of  1887,  the  act  of  1851,  "  and  all 
other  acts  and  parts  of  acts  in  conflict  with"  the  act  of  1887,  are  re- 
pealed. The  first  section  of  the  act  of  1887,  wdth  the  exception  of  the 
proviso  at  the  end  thereof  in  reference  to  "minor  aliens  actually 
residing  in  the  United  States,"  is  as  follows:  "Be  it  enacted,  *  *  * 
that  a  non-resident  alien,  firm  of  aliens,  or  corporation  incorporated 
under  the  laws  of  any  foreign  country,  shall  not  be  capable  of  acquir- 
ing title  to  or  taking  or  holding  any  lands  or  real  estate  in  this  State 
by  descent,  devise,  purchase  or  otherwise,  except  that  the  heirs  of 
aliens  who  have  heretofore  acquired  lands  in  this  State  under  the 
laws  thereof,  and  the  heirs  of  aliens  who  may  acquire  lands  under  the 
provisions  of  this  act,  may  take  such  lands  by  devise  or  descent  and 
hold  the  same  for  the  space  of  three  years  and  no  longer,  if  such  alien 
at  the  time  of  so  acquiring  such  lands  is  of  the  age  of  twenty-one 
years,  and  if  not  twenty-one  years  of  age,  then  for  the  term  of  five 
years  from  the  time  of  so  acquiring  such  lands,  and  if,  at  the  end  of 
the  time  herein  limited,  such  lands  so  acquired  by  such  alien  heirs 
have  not  been  sold  to  bond  fide  purchasers  for  value,  or  such  alien 
heirs  have  not  become  actual  residents  of  this  State,  the  same  shall 
revert  and  escheat  to  the  State  of  Illinois  the  same  as  the  lands  of 
other  aliens  under  the  provisions  of  this  act."  By  the  use  of  the 
words,  "heirs  of  aliens  who  may  acquire  lands  under  the  provisions 
of  this  act,"  reference  is  evidently  made  to  the  case  specified  in  sec- 
tion 8  of  the  act,  where  a  non-resident  alien,  owning  lands  in  this 


416  NATIONALITY.  [PART   I. 

State  at  the  time  the  act  tock  effect,  disposes  of  the  same  duriug  his 
lifetime,  and  takes  security  for  the  purchase  mouey,  aud  afterwards 
he,  "or  his  non-resident  heirs,"  again  obtain  the  title  on  sale  made 
under  a  judgment  or  decree,  rendered  in  order  to  enforce  the  payment 
of  any  part  of  such  purchase  money. 

Tlie  appellants  do  not  come  within  the  terms  of  the  exception 
mentioned  in  section  1,  because  they  are  not  the  heirs  of  an  alien, 
but,  on  the  contrary,  the  deceased  intestate,  whose  heirs  they  claim 
to  be,  was  a  citizen  and  resident  of  the  United  States  at  the  time  of 
his  death.  They  do,  however,  come  directly  within  the  terras  of  the 
principal  or  enacting  clause  of  section  1.  As  it  is  conceded  that 
they  are  aud  always  have  been  residents  of  the  Grand  Duchy  of 
Baden  and  subjects  of  the  German  Empire,  each  of  them  is  a  non- 
resident alien;  and  the  enacting  clause  of  section  1  expressly  and 
explicitly  declares,  that  "  a  non-resident  alien  *  *  *  shall  not  be  cap- 
able of  acquiring  title  to  or  taking  or  holding  any  lands  or  real  estate 
in  this  State  by  descent."  Manifestly,  therefore,  the  appellants  are 
not  entitled  to  take  any  portion  of  the  lands  in  controversy  by  inheri- 
tance from  their  deceased  brother,  if  the  act  of  1887,  as  applied  to 
the  facts  of  this  case,  is  a  valid  law.  The  subject  presented  by  the 
record  is  the  validity  of  the  act  of  1887. 

First,  it  is  said,  that  the  act  conflicts  with  various  treaties  made 
by  the  government  of  the  United  States,  and  particularly  with  a 
treaty  made  in  1871  with  the  German  empire. 

It  is  a  general  rule  of  the  common  law,  that  the  title  to  real  prop- 
erty must  be  acquired  and  passed  according  to  the  lex  rel  sitce.  This 
rule  not  only  applies  to  alienations  and  acquisitions  made  by  the  acts 
of  the  parties,  but  also  to  estates  and  rights  acquired  by  operation  of 
law.  The  descent  and  heirship  of  real  estate  are  governed  by  the  law 
of  the  country  where  it  is  located.  (Story  on  Confl.  of  Laws,  sees. 
424,  448,  483,  509;  Stolfz  v.  Doerijig,  112  111.  234.)  This  principle, 
originally  applicable  as  between  countries  entirely  foreign  to  each 
other,  also  prevails  as  among  the  States  of  the  American  Union. 
From  it  results  the  doctrine,  that  the  title  of  aliens  to  land  within  the 
limits  of  the  several  States  is  matter  of  State  regulation.  Williams 
on  Real  Property,  4th  ed.,  p.  64,  note  1;  Lawrence's  Wheatou  on 
International  Law,  p.  168  n.;  Story  on  Confl.  of  Laws,  sec.  430; 
Wheaton's  Int.  Law  (Boyd),  3d  ed.,  p.  132;  2  Wharton's  Inter.  Law 
Dig.,  bottom  pages  490  and  497;  Field's  Inter.  Code,  2d  ed.,  p.  176. 
But  while  it  is  true  that  "  the  right  of  foreigners  to  hold  title  to  real 
estate  is  entirely  dependent  on  the  laws  of  the  State  in  which  the  land 
is  situate,"  2  Wharton's  Int.  Law  Dig.,  sec.  201,  p.  400,  it  is  also  true 
that  the  State  law  must  give  way  if  it  conflicts  with  any  existing  treaty 


CHAP.  IV.]  WUNDERLE   V.    WUNDERLE.  417 

between  the  government  of  the  United  States  and  the  government  of 
the  country  of  which  such  foreigner  is  a  subject  or  citizen. 

Article  6  of  the  Federal  Constitution  provides,  that  "all  treaties 
made  or  which  shall  be  made  under  the  authority  of  the  United 
States  shall  be  the  supreme  law  of  the  land,  and  the  judges  in  every 
State  shall  be  bound  thereby,  anything  in  the  constitution  or  laws  of 
any  State  to  the  contrary  notwithstanding."  In  construing  this  arti- 
cle it  has  been  held,  that  provisions  in  regard  to  the  transfer,  devise 
or  inheritance  of  property  are  fitting  subjects  of  negotiation  and  regu- 
lation by  the  treaty-making  power  of  the  United  States,  and  that  a 
treaty  will  control  or  suspend  the  statutes  of  the  individual  States 
"whenever  it  differs  from  them.  Hence,  if  the  citizen  or  subject  of  a 
foreign  government  is  disqualified  under  the  laws  of  a  State  from  tak- 
ing, holding  or  transferring  real  property,  such  disqualification  will 
be  removed,  if  a  treaty  between  the  United  States  and  such  foreign 
government  confers  the  right  to  take,  hold  or  transfer  real  property. 
Hauenstein  v.  Lynham,  100  U.  S.  483;  Geofroy  v.  Sir/ffs,  133  U.  S. 
258;  JFare  v.  Hylton,  3  Dall.  199;  Chirac  v.  Chirac,  2  Wheat.  259; 
Orr  V.  Hodgson,  4  Wheat.  453;  Fairfax  v.  Hunter,  7  Cranch,  603; 
The  People  v.  Gerke,  5  Cal.  381.  But  the  treaty  which  will  suspend 
or  override  the  statute  of  a  State  must  be  a  treaty  between  the  United 
States  and  the  government  of  the  particular  country  of  Avhicli  the 
alien,  claiming  to  be  relieved  of  the  disability  imposed  by  the  State 
law,  is  a  citizen  or  subject.  A  treaty  with  some  other  country,  of 
which  such  alien  is  not  a  citizen  or  subject,  cannot  have  the  effect  of 
removing  the  disability  complained  of. 

The  objection  made  to  the  act  of  1887  is,  that  it  does  not  allow 
non-resident  aliens,  who  would  be  the  heirs  of  citizens  under  the  Illi- 
nois statute  of  descents  but  for  their  alienage,  to  hold  real  estate, 
which  they  might  otherwise  inherit  as  heirs,  for  such  a  reasonable 
length  of  time  as  would  enable  them  to  sell  the  same,  and  remove  the 
proceeds  of  sale.  In  support  of  this  objection  counsel  refer  us  to  sev- 
eral treaties  containing  such  provisions  as  the  following:  "Where 
on  the  death  of  any  person  holding  real  estate  within  the  territories 
of  the  one  party,  such  real  estate  would,  by  the  laws  of  the  land, 
descend  on  a  citizen  or  subject  of  the  other,  were  he  not  disqualified 
by  alienage,  such  citizen  or  subject  shall  be  allowed  a  reasonable 
time  to  sell  the  same,  and  to  withdraw  the  proceeds  without  moles- 
tation, and  exempt  from  all  duties  of  detraction  on  the  part  of  the 
governments  of  the  respective  States."  Lawrence's  Wheaton  on  Int. 
Law,  p.  167;  Wheaton's  Int.  Law,  3d  Eng.  ed.  by  Boyd,  pp.  131, 
132.  But  the  appellants  are  subjects  of  the  Grand  Duchy  of  Baden; 
and  counsel  have  referred  us  to  no  treaty  with  Baden,  nor  have  we 

27 


418  NATIONALITY.  [PART   I. 

been  able  to  find  any,  ■which  contains  such  a  provision  as  that  last 
above  quoted.  The  treaties  between  the  United  States  and  Baden, 
made  in  1857  and  in  1868,  had  reference  to  the  extradition  of  crimi- 
nals and  to  naturalization,  but  they  contained  no  stipulations  as  to 
the  acquisition,  or  transfer,  or  transmission  of  property.  Treaties 
and  Conventions,  U.  S.,  1776-1887,  pp.  41-46.  On  the  contrary, 
we  find  it  stated  in  one  of  the  works  on  international  law,  that,  at  a 
time  when  certain  treaties  Avere  made  with  some  of  the  German  states 
by  a  representative  of  the  United  States,  "Baden  declined  making 
any."     Lawrence's  Wheat,  on  Int.  Law,  p.  168,  note. 

It  is  claimed,  however,  that  the  treaty  concluded  on  Dec.  11,  1871, 
between  the  German  Empire,  of  which  Baden  now  forms  a  part,  and 
the  United  States,  contains  a  stipulation  which  should  be  so  construed 
as  to  remove  the  disability  imposed  upon  the  appellants  by  the  act  of 
1887.  That  stipulation  is  embodied  in  Article  10  of  the  treaty  and  is 
as  follows:  "In  all  successions  to  inheritances,  citizens  of  each  of  the 
contracting  parties  shall  pay  in  the  country  of  the  other  such  duties 
only  as  they  would  be  liable  to  pay,  if  they  were  citizens  of  the 
country  in  which  the  property  is  situated,  or  the  judicial  adminis- 
tration of  tlie  same  may  be  exercised.  Treaties  and  Conventions, 
U.  S.,  1776-1887,  p.  366.  This  article  in  a  treaty,  made  by  the 
German  empire  soon  after  its  formation,  conferred  no  new  rights  so 
far  as  the  power  to  take,  hold,  or  dispose  of  land  was  concerned.  It 
merely  recognized  existing  treaties  theretofore  made  between  the 
United  States  and  certain  of  the  German  states,  which  became  parts 
of  the  empire  when  it  was  formed.  It  did  nothing  more  than  stipu- 
late in  regard  to  the  payment  of  duties  in  cases  where  treaties 
already  in  existence  contained  provisions  upon  the  subject  of  succes- 
sions to  inheritances.  Article  10  permitted  such  stipulations  as  had 
been  made  in  the  treaties  of  the  separate  states  to  continue  in  force 
under  the  treaty  of  the  empire,  but  neither  that  article,  nor  any 
other  article  of  the  treaty  of  1871,  provided  that  the  subjects  of  the 
empire  should  be  permitted  to  take  or  hold  real  estate  in  the  United 
States,  except  so  far  as  the  right  to  do  so  was  guaranteed  by  existing 
treaties. 

In  Re  Tliomdn,  12  Blatchf.  370,  in  an  opinion  delivered  by  Mr. 
Justice  Blatchford,  it  was  held  that  the  convention,  concluded 
between  Bavaria  and  the  United  States  on  Sept.  12,  1853,  for  the 
extradition  of  criminals,  was  not  abrogated  by  the  absorption  of  Bava- 
ria into  the  German  Empire;  and  the  learned  Justice  there  says: 
"An  examination  of  the  provisions  of  the  constitution  of  the  German 
Empire  does  not  disclose  anything  which  indicates  that  then  existing 
treaties  between  the  several  states  composing  the  confederation  called 


CHAP.  IV.]  WUNDERLE   V.   WUNDERLE.  419 

the  German   Empire  and   foreign  countries  were  annulled,  or  to  be 
considered  as  abrogated." 

Our  conclusion  upon  this  branch  of  the  case  is  that  the  disability 
imposed  upon  non-resident  aliens  by  the  first  section  of  the  act  of 
1887  is  not  removed,  so  far  as  the  appellants  are  concerned,  by  any 
existing  treaty  between  the  United  States  and  the  Grand  Duchy  of 
Baden,  or  between  the  United  States  and  the  German  Empire;  nor 
is  the  disqualification  of  the  appellants,  as  declared  by  said  act, 
affected  in  any  way  by  provisions  in  treaties  between  the  United 
States  and  other  governments  than  those  of  Baden  and  the  German 
Empire.'^ 

1  Note  the  language  of  Mr.  Justice  Swayne  in  Hauenstein  v.  Lynham,  1879, 100  U.  S. 
483, 488-490 :  "  The  efficacy  of  the  treaty  is  declared  and  guaranteed  by  the  Constitution 
of  tlie  United  States.  That  instrument  took  effect  on  the  fourth  day  of  March,  1789. 
In  1796,  but  a  few  years  later,  this  court  said  :  '  If  doubts  could  exist  before  the  adoption 
of  the  present  national  government,  they  must  be  entirely  removed  by  the  sixth  article 
of  the  Constitution,  which  provides  that  "  all  treaties  made  or  which  shall  be  made  under 
the  authority  of  the  United  States  shall  be  tke  supreme  law  of  the  land,  and  tiie  judges 
in  every  State  shall  be  bound  thereby,  anytliing  in  the  Constitution  or  laws  of  any 
State  to  the  contrary  notwithstanding."  There  can  be  no  limitation  on  the  power  of 
the  people  of  the  United  States.  By  their  authority  the  State  constitutions  were 
made,  and  by  their  authority  the  Constitution  of  the  United  States  was  established  ; 
and  they  had  the  power  to  change  or  abolish  the  State  constitutions  or  to  make  them 
yield  to  the  general  government  and  to  treaties  made  by  their  authority.  A  treaty 
cannot  be  the  supreme  law  of  the  land,  that  is,  of  all  the  United  States,  if  any  act  of  a 
State  Legislature  can  stand  in  its  way.  If  the  constitution  of  a  State  (which  is  the 
fundamental  law  of  the  State  and  paramount  to  its  Legislature)  must  give  way  to  a 
treaty  and  fall  before  it,  can  it  be  questioned  wliether  the  less  power,  an  act  of  the  State 
Legislature,  must  not  be  prostrate  "?  It  is  the  declared  will  of  the  people  of  the  United 
States  that  every  treaty  made  by  the  authority  of  the  United  States  shall  be  superior 
to  the  constitution  and  laws  of  any  individual  State,  and  their  will  alone  is  to  decide. 
If  a  law  of  a  State  contrary  to  a  treaty  is  not  void,  but  voidable  only,  by  a  repeal  or 
nullification  by  a  State  Legislature,  this  certain  consequence  follows,  —  that  the  will  of 
a  small  part  of  the  United  States  may  control  or  defeat  the  will  of  tlie  whole.'  Ware 
V.  H;/lton,  3  Dall.  199. 

"  It  will  be  observed  tliat  the  treaty-making  clause  is  retroactive  as  well  as  pro- 
spective. The  treaty  in  question,  in  Ware  v.  Hi/lton,  was  the  British  treaty  of  1783, 
which  terminated  the  war  of  the  American  Revolution.  It  was  made  while  the 
Articles  of  Confederation  subsisted.  The  Constitution,  when  adopted,  applied  alike  to 
treaties  '  made  and  to  be  made.' 

"  We  have  quoted  from  the  opinion  of  Mr.  Justice  Chase  in  that  case,  not  because  we 
concur  in  everything  said  in  the  extract,  but  because  it  shows  the  views  of  a  powerful 
legal  mind  at  that  early  period,  when  the  debates  in  the  convention  which  framed  the 
Constitution  must  have  been  fresh  in  the  memory  of  the  leading  jurists  of  the  country. 
"  In  Chirac  v.  Chirac,  2  Wheat.  259,  it  was  held  by  this  court  that  a  treaty  with 
France  gave  to  her  citizens  tlie  right  to  purchase  and  hold  land  in  the  United  States, 
removed  the  incapacity  of  alienage  and  placed  them  in  precisely  the  same  situation  as 
if  they  had  been  citizens  of  this  country.     The  State  law  was  hardly  adverted  to,  and 


420  NATIONALITY,  [PART   I. 


HAVER  V.   TAKER. 

Supreme  Court  of  the  United  States,  18G9. 

(9  Wallace,  32.) 

Mr.  Justice  Davis  delivered  the  opinion  of  the  court. 

It  is  undoubtedly  true,  as  a  principle  of  international  law,  that,  as 
respects  the  rights  of  either  government  under  it,  a  treaty  is  con- 
sidered as  concluded  and  binding  from  the  date  of  its  signature.  lu 
tliis  regard  the  exchange  of  ratifications  has  a  retroactive  effect,  con- 
firming the  treaty  from  its  date  (Wheaton's  International  Law,  by 
Dana,  336,  bottom  paging).  But  a  different  rule  prevails  where  the 
treaty  operates  on  individual  rights.  The  principle  of  relation  does 
not  apply  to  rights  of  this  character,  which  were  vested  before  the 
treaty  was  ratified.     In  so  far  as  it  affects  them,  it  is  not  considered  as 

seems  not  to  have  been  considered  a. factor  of  any  importance  in  this  view  of  the  case. 
The  same  doctrine  was  reaffirmed  touching  this  treaty  in  Carneal  v.  Banks,  10  id.  181, 
and  with  respect  to  the  British  treaty  of  1704,  in  Hughes  v.  Edwards,  9  id.  489.  A 
treat)'  stipulation  may  be  effectual  to  protect  tlie  land  of  an  alien  from  forfeiture  by 
escheat  under  the  laws  of  a  State.  Orr  v.  Ilodgeson,  4  id.  453.  By  tlie  British  treaty 
of  1794,  'all  impediment  of  alienage  was  absolutely  levelled  with  the  ground  despite 
tlie  laws  of  the  States.  It  is  the  direct  constitutional  question  in  its  fullest  conditions. 
Yet  the  Supreme  Court  held  that  the  stipulation  was  within  the  constitutional  powers 
of  the  Union.  FaiTja.r''s  Devisees  v.  Hunter's  Lessee,  7  Cranch,  627  ;  see  Ware  v. 
Hi/lton,  3  Dall.  242.'  8  Op.  Att'ys-Gen.  417.  Mr.  Calhoun,  after  laying  down  certain 
exceptions  and  qualifications  which  do  not  affect  this  case,  says  :  '  Within  tliese  limits 
all  questions  which  may  arise  between  us  and  otiier  powers,  be  the  subject-matter  what 
it  may,  fall  within  the  treaty-making  power  and  may  be  adjusted  by  it.'  Treaties  on 
the  Const,  and  Gov.  of  the  U.  S.  204. 

"If  the  national  government  has  not  the  power  to  do  what  is  done  by  sucli  treaties, 
it  cannot  be  done  at  all,  for  the  States  are  expressly  forbidden  to  '  enter  into  any 
treaty,  alliance,  or  confederation.'     Const.,  art.  1,  §  10. 

"  It  must  always  be  borne  in  mind  that  the  Constitution,  laws,  and  treaties  of  the 
United  States  are  as  mucli  a  part  of  the  law  ofevery  State  as  its  own  local  laws  and 
constitution.  This  is  a  fundamental  principle  in  our  system  of  comjjlex  national 
polity.  See,  also,  Shanks  v.  Dupout,  3  Pet.  242 ;  Foster  ^-  Elam  v.  Neilson,  2  id.  253 ; 
The  Cherokee  Tobacco,  11  Wall.  616;  Mr.  Pinkney's  Speecii,  3  Elliot's  Constitutional 
Debates,  231;  The  People,  §x.,  v.   Gerke  Sr  Clark,  5  Cal.  381. 

"  We  have  no  doubt  tliat  this  treaty  is  within  the  treaty-making  power  conferred  by 
the  Constitution.     And  it  is  our  duty  to  give  it  full  effect." 

The  power  of  the  Federal  Government  to  conclude  a  treaty,  which  either  expressly 
or  Impliedly  repeals  or  modifies  a  State  statute,  is  considered  on  principle  and 
affirmatively  established  in  the  light  of  legal  theory  in  People  v.  Gerke,  1858,  5  Cal. 
381. —  Eu. 


CHAP.  IV.]  HAVER  V.   YAKER.  421 

concluded  until  there  is  an  exchange  of  ratifications,  and  this  we 
understand  to  have  been  decided  by  this  court,  in  Arredondo's  Case, 
reported  in  6th  Peters,  Vol.  VI.  p.  749.  The  reason  of  the  rule  is  ap- 
parent. In  this  country,  a  treaty  is  something  more  than  a  contract, 
for  the  "Federal  Constitution  declares  it  to  be  the  law  of  the  land.  If 
so,  before  it  can  become  a  law,  the  Senate,  in  whom  rests  the  authority 
to  ratify  it,  must  agree  to  it.  But  the  Senate  are  not  required  to 
adopt  or  reject  it  as  a  whole,  but  may  modify  or  amend  it,  as  was  done 
with  the  treat}^  under  consideration.  As  the  individual  citizen,  on 
whose  rights  of  property  it  operates,  has  no  means  of  knowing  any- 
thing of  it  while  before  the  Senate,  it  would  be  wrong  in  principle  to 
hold  him  bound  by  it,  as  the  law  of  the  land,  until  it  was  ratified  and 
proclaimed.  And  to  construe  the  law,  so  as  to  make  the  ratification 
of  the  treaty  relate  back  to  its  signing,  thereby  divesting  a  title  already 
vested,  would  be  manifestly  unjust,  and  cannot  be  sanctioned. 

These  views  dispose  of  this  case,  and  we  are  not  required  to  deter- 
mine whether  this  treaty,  if  it  had  become  a  law  at  an  earlier  date, 
would  have  secured  the  plaintiffs  in  error  the  interest  which  they 
claim  in  the  real  estate  left  by  Yaker  at  his  death. 

Judgment  affirmed.^ 

1  Mr.  Justice  Wayne,  in  Davis  v.  The  Police  Jur,/,  1850,  9  How.  280,  289,  says: 
"All  treaties,  as  well  those  for  cessions  of  territory  as  for  other  purposes,  are  binding 
upon  the  contracting  parties,  unless  wlien  otiierwise  provided  in  them,  from  the  day 
they  are  signed,  the  ratification  of  them  relates  back  to  the  time  of  signing.  Vattel, 
B.  4,  c.  2,  §  22  ;  Mart.  Summary,  B.  8,  c.  7,  §  5. 

"  It  is  true  that,  in  a  treaty  for  the  cession  of  territory,  its  national  cliaracter  con- 
tinues, for  all  commercial  purposes  ;  but  full  sovereignty,  for  the  exercise  of  it,  does  not 
pass  to  the  nation  to  which  it  is  transferred  until  actual  delivery.  But  it  is  also  true, 
tliat  the  exercise  of  sovereignty  by  the  ceding  country  ceases  except  for  strictly  munic- 
ipal purposes,  especially  for  granting  lands.  And  for  the  same  reason  in  both  cases ; 
—  because,  after  the  treaty  is  made,  there  is  not  in  either  the  union  of  possession  and 
tlie  right  to  the  territory  which  must  concur  to  give  plenum  dominium  et  utile.  To  give 
that,  there  must  be  thejus  in  rem  and  the  jus  in  re,  or  what  is  called  in  the  common 
law  of  England  the  juris  et  seisinal  conjunctio.  '  This  general  law  of  property  applies  to 
the  right  of  territory  no  less  than  to  other  rights,  and  all  writers  upon  the  law  of 
nations  concur,  that  the  practice  and  conventional  law  of  nations  has  been  comforni- 
able  to  this  principle.'     Putfendorf,  par  Barbeyrac,  lib.  4,  c.  9,  §  8,  note  2. 

"  In  this  case,  after  the  treaty  was  made,  and  until  Louisiana  was  delivered  to  France, 
its  possession  continued  in  Spain.  The  right  to  the  territory,  thougli  in  France,  was 
imperfect  until  ratified,  but  absolute  Viy  ratification  from  the  date  of  the  treaty."  The 
learned  justice  cited  witli  approval,  indeed  he  based  his  argument  and  opinion  upon 
the  judgment  of  Sir  William  Scott  in  the  Fama,  1804,  5  C.  Rob.  106.  —  Ed. 


422  NATIONALITY.  [pART  I. 

WHITNEY   V.    EOBEKTSOX. 
Supreme  Court  of  the  United  States,  1887. 

(124  United  States,  190.) 

Mr.  Justice  Eield  delivered  the  opinion  of  the  court. 

The  plaintiffs  are  merchants,  doing  business  in  the  city  of  ZSTew 
York,  and  in  August,  1882,  they  imported  a  large  quantity  of  '"cen- 
trifugal and  molasses  sugars,"  the  produce  and  manufacture  of  the 
island  of  San  Domingo,  These  goods  were  similar  in  kind  to  sugars 
produced  in  the  Hawaiian  Islands,  which  are  admitted  free  of  duty 
under  the  treaty  with  the  king  of  those  islands,  and  the  act  of  Con- 
gress, passed  to  carry  the  treaty  into  effect.  They  were  duly  entered 
at  the  custom  house  at  the  port  of  Xew  York,  the  plaintiffs  claiming 
that  by  the  treaty  with  the  Kepublic  of  San  Domingo  the  goods 
should  be  admitted  on  the  same  terms,  that  is,  free  of  duty,  as  simi- 
lar articles,  the  produce  and  manufacture  of  the  Hawaiian  Islands. 
The  defendant,  who  was  at  the  time  collector  of  the  port,  refused  to 
allow  this  claim,  treated  the  goods  as  dutiable  articles  under  the  acts 
of  Congress,  and  exacted  duties  on  them  to  the  amount  of  $21,936. 
The  plaintiffs  appealed  from  the  collector's  decision  to  the  Secretary 
of  the  Treasury,  by  whom  the  appeal  was  denied.  They  then  paid 
under  protest  the  duties  exacted,  and  brought  the  present  action  to 
recover  the  amount. 

The  complaint  set  forth  the  facts  as  to  the  importation  of  the  goods, 
the  claim  of  the  plaintiffs  that  they  should  be  admitted  free  of  duty 
because  like  articles  from  the  Hawaiian  Islands  were  thus  admitted, 
the  refusal  of  the  collector  to  allow  the  claim,  the  appeal  from  his 
decision  to  the  Secretary  of  the  Treasury  and  its  denial  by  him,  and 
the  payment  under  protest  of  the  duties  exacted,  and  concluded  with 
a  prayer  for  judgment  for  the  amount.  The  defendant  demurred  to 
the  complaint,  the  demurrer  was  sustained,  and  final  judgment  was 
entered  in  his  favor,  to  review  which  the  case  is  brought  here. 

The  treaty  with  the  king  of  the  Hawaiian  Islands  provides  for  the 
importation  into  the  United  States,  free  of  duty,  of  various  articles, 
the  produce  and  manufacture  of  those  islands,  in  consideration,  among 
other  things,  of  like  exemption  from  duty,  on  the  importation  into 
that  country,  of  sundry  specified  articles  which  are  the  produce  and 
manufacture  of  the  United  States.  19  Stat.  G25.  The  language  of 
the  first  two  articles  of  the  treaty,  which  recite  the  reciprocal  engage- 


CHAP.  IV.]  WHITNEY    V.   PwOBERTSON.  423 

ineuts  of  the  two  countries,  declares  that  they  are  made  in  considera- 
tion "of  the  rights  and  privileges"  and  "as  an  equivalent  therefor," 
which  one  concedes  to  the  other. 

The  plaintiffs  rely  for  a  like  exemption  of  the  sugars  imported  by 
them  from  San  Domingo  upon  the  9th  article  of  the  treaty  with  the 
Dominican  Republic,  which  is  as  follows:  "!N"o  higher  or  other  duty 
shall  be  imposed  on  the  importation  into  the  United  States  of  any 
article  the  growth,  produce,  or  manufacture  of  the  Dominican  Repub- 
lic, or  of  her  fisheries;  and  no  higher  or  other  duty  shall  be  imposed 
on  the  importation  into  the  Dominican  Republic  of  any  article  the 
growth,  produce,  or  manufacture  of  the  United  States,  or  their  fish- 
eries, than  are  or  shall  be  payable  on  the  like  articles  the  growth, 
produce,  or  manufacture  of  any  other  foreign  country,  or  its  fisher- 
ies."    15  Stat.  473,  478. 

In  Bartram  v.  Robertson,  decided  at  the  last  term  (122  U.  S.  116), 
we  held  that  brown  and  unrefined  sugars,  the  produce  and  manufac- 
ture of  the  island  of  St.  Croix,  which  is  part  of  the  dominions  of  the 
King  of  Denmark,  were  not  exempt  from  duty  by  force  of  the  treaty 
with  that  country,  because  similar  goods  from  the  Hawaiian  Islands 
were  thus  exempt.  The  first  article  of  the  treaty  with  Denmark  pro- 
vided that  the  contracting  parties  should  not  grant  "any  particular 
favor"  to  other  nations  in  respect  to  commerce  and  navigation,  which 
should  not  immediately  become  common  to  the  other  party,  who 
should  "  enjoy  the  same  freely  if  the  concession  were  freely  made, 
and  upon  allowing  the  same  compensation  if  the  concession  were  con- 
ditional." 11  Stat.  719.  The  fourth  article  provided  that  no  "higher 
or  other  duties  "  should  be  imposed  by  either  party  on  the  importa- 
tion of  any  article  which  is  its  produce  or  manufacture,  into  the 
country  of  the  other  party,  than  is  payable  on  like  articles,  being 
the  produce  or  manufacture  of  any  other  foreign  country.  And  we 
held  in  the  case  mentioned  that  "those  stipulations,  even  if  conceded 
to  be  self-executing  by  the  way  of  a  proviso  or  exception  to  the  gen- 
eral law  imposing  the  duties,  do  not  cover  concessions  like  those 
made  to  the  Hawaiian  Islands  for  a  valuable  consideration.  They 
were  pledges  of  the  two  contracting  parties,  the  United  States  and 
the  King  of  Denmark,  to  each  other,  that  in  the  imposition  of  duties 
on  goods  imported  into  one  of  the  countries  which  were  the  produce 
or  manufacture  of  the  other,  there  should  be  no  discrimination  against 
them  in  favor  of  goods  of  like  character  imported  from  any  other 
country.  They  imposed  an  obligation  upon  both  countries  to  avoid 
hostile  legislation  in  that  respect.  But  they  were  not  intended  to 
interfere  with  special  arrangements  with  other  countries  founded 
upon  a  concession  of  special  privileges." 


424  NATIONALITY.  [PART   I. 

The  counsel  for  the  plaintiffs  meet  this  position  by  pointing  to  the 
omission  in  the  treaty  with  the  Republic  of  San  Domingo  of  the  pro- 
vision as  to  free  concessions,  and  concessions  upon  compensation, 
contending  that  the  omission  precludes  any  concession  in  respect  of 
commerce  and  navigation  by  our  government  to  another  country,  with- 
out that  concession  being  at  once  extended  to  Sau  Domingo.  We  do 
not  think  that  the  absence  of  this  provision  changes  the  obligations 
of  the  United  States.  The  9th  article  of  the  treaty  with  that  repub- 
lic, in  the  clause  quoted,  is  substantially  like  the  4th  article  in  the 
treaty  with  the  King  of  Denmark.  And  as  we  said  of  the  latter,  we 
may  say  of  the  former,  that  it  is  a  pledge  of  the  contracting  parties 
that  there  shall  be  no  discriminating  legislation  against  the  importa- 
tion of  articles  which  are  the  growth,  produce,  or  mianufacture  of 
their  respective  countries,  in  favor  of  articles  of  like  character, 
imported  from  any  other  country.  It  has  no  greater  extent.  It  was 
never  designed  to  prevent  special  concessions,  upon  sufficient  consid- 
erations, touching  the  importation  of  specific  articles  into  the  country 
of  the  other.  It  would  require  the  clearest  language  to  justify  a  con- 
clusion that  our  government  intended  to  preclude  itself  from  such 
engagements  with  other  countries,  which  might  in  the  future  be  of 
the  highest  importance  to  its  interests. 

But,  independently  of  considerations  of  this  nature,  there  is  another 
and  complete  answer  to  the  pretensions  of  the  plaintiffs.  The  act 
of  Congress  under  which  the  duties  were  collected  authorized  their 
exaction.  It  is  of  general  application,  making  no  exception  in  favor 
of  goods  of  any  country.  It  was  passed  after  the  treaty  with  the 
Dominican  Republic,  and,  if  there  be  any  conflict  between  the  stipu- 
lations of  the  treaty  and  the  requirements  of  the  law,  the  latter  must 
control.  A  treaty  is  primarily  a  contract  between  two  or  more  inde- 
pendent nations,  and  is  so  regarded  by  writers  on  public  law.  For 
the  infraction  of  its  provisions  a  remedy  must  be  sought  by  the 
injured  party  through  reclamations  upon  the  other.  When  the  stipu- 
lations are  not  self-executing  they  can  only  be  enforced  pi;rsuant  to 
legislation  to  carry  them  into  effect,  and  such  legislation  is  as  much 
subject  to  modification  and  repeal  by  Congress  as  legislation  upon 
any  other  subject.  If  the  treaty  contains  stipulations  which  are 
self-executing,  that  is,  require  no  legislation  to  make  them  opera- 
tive, to  tlmt  extent  they  have  the  force  and  effect  of  a  legislative 
enactment.  Congress  may  modify  such  provisions,  so  far  as  they 
bind  the  United  States,  or  supersede  them  altogether.  By  the  Con- 
stitution a  treaty  is  placed  on  the  same  footing,  and  made  of  like 
obligation,  with  an  act  of  legislation.  Both  are  declared  by  tliat 
instrument  to  be  the  supreme  law  of  the  land,  and  no  superior  efficacy 


CHAP.  IV.]  WHITNEY   V.    ROBERTSON.  425 

is  given  to  either  over  the  other.  When  the  two  relate  to  the  same 
subject,  the  courts  will  always  endeavor  to  construe  them  so  as  to 
give  effect  to  both,  if  that  can  be  done  without  violating  the  language 
of  either;  but  if  the  two  are  inconsistent,  the  one  last  in  date  will 
control  the  other,  provided  always  the  stipulation  of  the  treaty  on 
the  subject  is  self-executing.  If  the  country  with  which  the  treaty 
is  made  is  dissatisfied  with  the  action  of  the  legislative  department, 
it  may  present  its  complaint  to  the  executive  head  of  the  government, 
and  take  such  other  measures  as  it  may  deem  essential  for  the  protec- 
tion of  its  interests.  The  courts  can  afford  no  redress.  Whether  the 
complaining  nation  has  just  cause  of  complaint,  or  our  country  was 
justified  in  its  legislation,  are  not  matters  for  judicial  cognizance. 
In  Taylor  v.  Morton,  2  Curtis,  454,  459,  this  subject  was  very  elabo- 
rately considered  at  the  circuit  by  Mr.  Justice  Curtis,  of  this  court, 
and  he  held  that  whether  a  treaty  with  a  foreign  sovereign  had  been 
violated  by  him;  Avhether  the  consideration  of  a  particular  stipula- 
tion of  the  treaty  had  been  voluntarily  Avithdrawn  by  one  party  so 
that  it  was  no  longer  obligatory  on  the  other;  whether  the  views  and 
acts  of  a  foreign  sovereign 'had  given  just  occasion  to  the  legislative 
department  of  our  government  to  withhold  the  execution  of  a  promise 
contained  in  a  treaty,  or  to  act  in  direct  contravention  of  such  prom- 
ise, were  not  judicial  questions;  that  the  power  to  determine  these 
matters  had  not  been  confided  to  the  judiciary,  which  has  no  suitable 
means  to  exercise  it,  but  to  the  executive  and  legislative  depart- 
ments of  our  government;  and  that  they  belong  to  diplomacy  and 
legislation,  and  not  to  the  administration  of  the  laws.  And  he 
justly'  observed,  as  a  necessary  consequence  of  these  views,  that  if 
the  power  to  determine  these  matters  is  vested  in  Congress,  it  is 
wholly  immaterial  to  inquire  whether  Iw  the  act  assailed  it  has 
departed  from  the  treaty  or  not,  or  whether  such  departure  Avas  by 
accident  or  design,  and,  if  the  latter,  whether  the  reasons  were  good 
or  bad. 

In  these  views  we  fully  concur.  It  follows,  therefore,  that  when 
a  law  is  clear  in  its  provisions,  its  validity  cannot  be  assailed  before 
the  courts  for  want  of  conformity  to  stipulations  of  a  previous  treaty 
not  already  executed.  Considerations  of  that  character  belong  to 
another  department  of  the  Government.  The  duty  of  the  courts  is 
to  construe  and  give  effect  to  the  latest  expression  of  the  sovereign 
will.  In  Head  Money  Cases,  112  U.  S.  580,  it  was  objected  to  an 
act  of  Congress  that  it  violated  provisions  contained  in  treaties  with 
foreign  nations,  but  the  court  replied  that  so  far  as  the  provisions  of 
the  act  were  in  conflict  with  any  treaty,  they  must  prevail  in  all  the 
courts  of  the  country;  and,  after  a  full  and  elaborate  consideration 


426  NATIONALITY.  [PART   I. 

of  the  subject,  it  held  that  "so  far  ag  a  treaty  made  by  the  United 
States  with  any  foreign  nation  can  be  the  subject  of  judicial  cogni- 
zance in  the  courts  of  this  country,  it  is  subject  to  such  acts  as 
Congress  may  pass  for  its  enforcement,  modification,  or  repeal." 

Judgment  affirmed.^ 

1  In  Botlller  v.  Dominguez,  1889,  130  U.  S.  238,  247,  it  is  said  :  "  With  regard  to  tlie 
first  of  these  propositions  it  may  be  said,  tliat  so  far  as  the  act  of  Congress  is  in  con- 
flict with  the  treaty  with  Mexico,  that  is  a  matter  in  wiiicli  the  court  is  bound  to  follow 
tlie  statutory  enactments  of  its  own  government.  If  the  treaty  was  violated  by  this 
general  statute,  enacted  for  tlie  purpose  of  ascertaining  the  validity  of  claims  derived 
from  the  Mexican  Government,  it  was  a  matter  of  international  concern,  which  the 
two  states  must  determine  by  treaty,  or  by  such  other  means  as  enables  one  state  to 
enforce  upon  another  the  obligations  of  a  treaty.  This  court  in  a  class  of  cases 
like  the  present  has  no  power  to  set  itself  up  as  the  instrumentality  for  enforcing  the 
provisions  of  a  treaty  with  a  foreign  nation  which  the  government  of  the  United  States, 
as  a  sovereign  power,  chooses  to  disregard.  The  C/ieroJcee  Tobacco,  11  Wall.  616  ; 
Taijlor  v.  .Vorton,  2  Custis,  454;  Head  Money  Cases,  112  U.  S.  580,  598;  Whitney  v. 
Robertson,  124  U.  S.  190,  195." 

In  Adams  v.  Akerlund,  1897,  168  111.  632,  638,  Mr.  Justice  Magruder  said: 
"  Where  treaties  concern  the  rights  of  individuals,  it  is  frequently  necessary  for  the 
courts  to  ascertain  by  construction  the  meaning  intended  to  be  conveyed  by  the  terms 
used.  United  States  \.  Rauscher,\\^  U.  S.  407  ;  Wilson  v.  IFk//,  6  Wall.  83;  Head 
Money  Cases,  112  U.  S.  580.  In  thus  giving  a  construction  to  the  language  of  treaties, 
the  courts  will  adopt  the  same  general  rules  which  are  applicable  in  the  construction 
of  statutes,  contracts  and  written  instruments  generally,  in  order  to  effectuate  the  pur- 
pose and  intention  of  the  makers.  26  Am.  &  Eng.  Ency.  of  Law,  p.  555.  Moreover, 
it  is  another  well-settled  rule,  laid  down  by  the  Supreme  Court  of  the  United  States, 
that,  '  where  a  treaty  admits  of  two  constructions,  one  restricted  as  to  the  rights  tliat 
may  be  claimed  under  it,  and  the  other  liberal,  the  latter  is  to  be  preferred.'  Hauen- 
stein  V.  Lynham,  100  U.  S.  483;  Schnltze  v.  Schultze,  144  111.  290." 

In  Tucker  v.  Alexandroff,  1901, 183  U.  S.  424,  437,  Mr.  Justice  Rrown  uses  the  follow- 
ing language  :  "  We  think,  then,  that  the  rights  of  tlie  parties  are  to  be  determined  by 
the  treaty,  but  that  this  particular  convention,  being  operative  upon  both  jjowers  and 
intended  for  their  mutual  protection,  should  be  interpreted  in  a  spirit  of  ubenimajides, 
and  in  a  manner  to  carry  out  its  manifest  purpose.  Taylor  on  International  Law, 
§  383.  As  treaties  are  solemn  engagements  entered  into  between  independent  nations 
for  the  common  advancement  of  their  interests  and  the  interests  of  civilization,  and  as 
their  main  object  is  not  only  to  avoid  war  and  secure  a  lasting  and  perpetual  peace, 
but  to  promote  friendly  feeling  between  the  people  of  the  two  countries,  they  sliould 
be  interpreted  in  tliat  broad  and  liberal  spirit  which  is  calculated  to  make  for  the  exist- 
ence of  perpetual  amity,  so  far  as  it  can  be  done  without  the  sacrifice  of  individual 
riglits  or  those  principles  of  personal  liberty  whicli  lie  at  tlie  foundation  of  our  jurispru- 
dence. It  is  said  by  Chancellor  Kent  in  his  Commentaries,  Vol.  I.,  p.  174 :  '  Treaties  of 
every  kind  are  to  receive  a  fair  and  liberal  interpretation  according  to  the  intention 
of  tlie  contracting  parties,  and  are  to  be  kept  with  the  most  scrupulous  good  faith. 
Their  meaning  is  to  be  ascertained  by  the  same  rules  of  construction  and  course 
of  reasoning  which  we  apply  to  the  interpretation  of  private  contracts.'  " 

If  treaties  between  nations  standing  upon  the  same  social  and  intellectual  plain 
are  to  be  liberallj'  construed,  it  stands  to  reason  that  when  one  contracting  party  is  a 
powerful  and  enliglitened,  the  other  a  backward,  weak  and  therefore  dependent  nation, 


CHAP.  IV.]  SUTTON  V.   SUTTON.  427 

SUTTON  V.  SUTTON. 

Court  of  Chancery,  1830. 

(1  Russell  4-  Mylne,  663.) 

The  Master  of  the  Eolls  [Sir  John  Leach]. ^ 

The  relations,  which  had  subsisted  between  Great  Britain  and 
America,  when  they  formed  one  empire,  led  to  the  introduction  of 
the  ninth  section  of  the  treaty  of  1794,  and  made  it  highly  reasonable 
that  the  subjects  of  the  two  parts  of  the  divided  empire  should,  not- 
withstanding the  separation,  be  protected  in  the  mutual  enjoyment  of 
their  landed  property;  and,  the  privileges  of  natives  being  reciprocally 
given,  not  only  to  the  actual  possessors  of  lands,  but  to  their  heirs 
and  assigns,  it  is  a  reasonable  construction  that  it  was  the  intention 
of  the  treaty  that  the  operation  of  the  treaty  should  be  permanent, 
and  not  depend  upon  the  continuance  of  a  state  of  peace. 

The  act  of  37  George  III.  gives  full  effect  to  this  article  of  the 
treaty  in  the  strongest  and  clearest  terms;  and  if  it  be,  as  I  consider 

the  letter  must  yield  much  to  the  spirit.  Or  as  Mr.  Justice  Gray  said,  in  Jones  v. 
Meliaii,  1899,  175  U.  S.  1,  11 :  "  The  treaty  must  therefore  be  construed,  not  according 
to  tlie  technical  meaning  of  its  words  to  learned  lawyers,  but  in  the  sense  in  which  they 
•would  naturally  be  understood  by  the  Indians.  Worcester  v.  Georqia,  6  Pet.  515; 
The  Kansas  Indians,  5  Wall.  737,  760;  Choctaw  Xation  v.  United  States,  119  U.  S. 
1,  27,  28." 

But,  however  liberally  the  treaty  may  be  interpreted,  it  is  the  agreement  made  by 
the  parties,  not  by  tlie  court,  tliatis  to  be  interpreted.  Tlie  spirit  will,  indeed,  be  found 
out,  but  a  new  clause  will  not  be  read  in  the  treaty.  For  example,  in  The  Amiable  Isabella, 
1821,  6  Wheat.  1,  Mr.  Justice  Story  refused  to  read  into  the  treaty  of  1795  with  Spain 
the  form  of  a  passport  which  the  contracting  parties  had,  it  would  seem,  inadvertently 
left  out.  In  like  manner  the  Supreme  Court  in  a  recent  case  refused  to  consider  a 
"proviso  "  (to  which  ratification  was  made  subject)  as  part  of  the  treaty,  because  the 
proviso  was  omitted  in  the  ofBcial  publication  of  tiie  treaty.  N.  Y.  India/is  v.  U.  S., 
1897,  170  U.  S.  1.  Where,  however,  a  written  declaration  was  annexed  to  the  treaty 
at  tiie  time  of  its  ratification,  tlie  declaration  was  held  as  obligatory  as  if  the  provision 
had  been  inserted  in  the  body  of  the  treaty  itself,  because  the  declaration  was  annexed 
with  full  knowledge  and  consent  of  both  parties  to  the  treaty.  Doe  v.  Braden,  1853, 
16  How.  635. 

Ou  the  question  of  the  interpretation  of  treaties  in  general,  see  a  very  learned  and 
comprehensive  note  by  J.  C.  Bancroft  Davis,  U.  S.  Treaties  and  Conventions,  1889, 
pp.  1227-1229  (printed  with  additions,  2  Butler's  Treaty-Making  Power,  note  6, 
pp.  115-148).  — Ed. 

1  The  statement  of  the  case  is  omitted.  Tlie  ninth  article  of  Jny's  Treaty  enabled 
the  subjects  of  either  country  to  hold  lands  in  the  other,  and  to  sell  and  devise  them  as 
if  they  were  natives.  —  Ed. 


428  KATIONALITY.  [PART   T. 

it,  tlie  true  construction  of  this  article,  that  it  was  to  be  permanent, 
and  independent  of  a  state  of  peace  or  war,  then  the  act  of  Parlia- 
ment must  be  held,  in  the  twenty-fourth  section,  to  declare  this 
permanency;  and  when  a  subsequent  section  provides  that  the  act  is 
to  continue  in  force,  so  long  only  as  a  state  of  peace  shall  subsist, 
it  cannot  be  construed  to  be  directly  repugnant  and  opposed  to  the 
twenty-fourth  section,  but  is  to  be  understood  as  referring  to  si;ch 
provisions  of  the  act  only  as  would  in  their  nature  depend  upon  a 
state  of  peace. 

I  am  of  opinion,  therefore,  in  favor  of  the  title,  and  consider  that 
the  heirs  and  assigns  of  every  American  who  held  lands  in  Great 
Britain  at  the  time  mentioned  in  the  act  of  the  37  George  III.  are, 
as  far  as  regards  those  lands,  to  be  treated,  not  as  aliens,  but  as 
native  subjects.^ 


SOCIETY  FOE,  THE  PEOPAGATIO^N'   OF   THE   GOSPEL   IN 

EOFvEIGN  PARTS  v.   THE   TOWN   OF   NEW  HAVEN, 

AND   WILLIAM  WHEELER. 

Supreme  Court  of  the  United  States,  1823. 

(8  Wheaton,  4Qi.) 

This  case  came  before  the  court  upon  a  certificate  of  a  division  in 
opinion  of  the  judge  of  the  circuit  court  for  the  District  for  Vermont. 
It  was  an  action  of  ejectment,  brought  by  the  plaintiffs  against  the 
defendants,  in  that  court. 

Mr.  Justice  Washington  delivered  the  opinion  of  the  court : 

1st.  That  the  capacity  of  the  plaintiffs,  as  a  corporation,  to  hold 
lands  in  Vermont,  ceased  b_y,  and  as  a  consequence  of,  the  revolution. 

2dly.  That  the  society  being,  in  its  politic  capacity,  a  foreign  cor- 
poration, it  is  incapable  of  holding  land  in  Vermont,  on  the  ground  of 
alienage  ;  and  that  its  riglits  are  not  protected  by  the  treaty  of  peace. 

1  Tliis  same  ninth  article  was  previous!}*  considered  in  an  American  case.  In  Fox 
V.  Southark,  1815,  12  Mass.  143,  148,  .Jacl<son,  J.,  says:  "It  is  not  necessary  for  tiie 
determination  of  tliis  cause,  to  decide  wlietiier  tiie  nintli  article  of  tliat  treaty  was 
annulled  l)y  the  late  war;  as,  if  it  were  so,  that  circumstance  would  not  give  any  new 
rights  to  the  plaintiff.  Ti)ere  seems,  iiowever,  to  he  no  douht  that  this  article  is  one  of 
those  stipulations  which  are  distinjjuished  hy  some  of  the  writers  on  tlie  law  of  nations 
as  real  in  their  own  nature  ;  and  which  are  accomplished  by  the  act  of  ratification,  so 
that  the}'  cannot  be  dissolved  by  any  subsequent  event.  Pactum  liberdtorium,  quo  pax 
nemisso  aut  transact! o,  facta  est,  qua  jus  extinr.tum  reviviscere  non  protest.  Commentary  of 
H.  Cocceius  on  Grotius,  B.  2,  c.  16,  §  16."  — Ed. 


CHAP.  IV.]       PROPAGATION    OF    GOSPEL    V.    NEW    HAVEN.  429 

3dly.  That  if  they  were  so  protected,  still  the  effect  of  the  last  war 
between  the  United  States  and  Great  Britain  was  to  put  an  end  to 
that  treaty,  and,  consequently,  to  rights  derived  under  it,  unless  they 
had  been  revived  by  the  treaty  of  peace,  which  was  not  done. 

2.  The  next  question  is,  was  this  property  protected  against  for- 
feiture, for  the  cause  of  alienage,  or  otherwise,  by  the  treaty  of  peace  ? 
This  question,  as  to  real  estates  belonging  to  British  subjects,  was 
finally  settled  in  this  court,  in  the  case  of  Orr  v.  Hodgson  (4  Wheat. 
Kep.  453),  in  which  it  was  decided,  that  the  sixth  article  of  the  treaty 
protected  the  titles  of  such  persons,  to  lands  in  the  United  States, 
which  would  have  been  liable  to  forfeiture,  by  escheat,  for  the  cause 
of  alienage,  or  to  confiscation,  jure  belli. 

The  counsel  for  the  defendants  did  not  controvert  this  doctrine,  so 
far  as  it  applies  to  natural  persons  ;  but  he  contends,  that  the  treaty 
does  not,  in  its  terms,  embrace  corporations  existing  in  England,  and 
that  it  ought  not  to  be  so  construed.  The  words  of  the  sixth  article  are, 
"  there  shall  be  no  future  confiscations  made,  nor  any  prosecutions 
commenced,  against  any  person  or  persons,  for  or  by  reason  of  tlie 
part  which  he  or  they  may  have  taken  in  the  present  war  ;  and  that 
no  person  shall,  on  that  account,  suffer  any  future  loss  or  damage, 
either  in  his  person,  liberty  or  property,"  etc. 

The  terms  in  which  this  article  is  expressed  are  general  and  un- 
qualified, and  we  are  aware  of  no  rule  of  interpretation  applicable  to 
treaties,  or  to  private  contracts,  which  would  authorize  the  court  to 
make  exceptions  by  construction,  where  the  parties  to  the  contract 
have  not  thought  proper  to  make  them.  Where  the  language  of  the 
parties  is  clear  of  all  ambiguity,  there  is  no  room  for  construction. 
Now,  the  parties  to  this  treaty  have  agreed,  that  there  shall  be  no 
future  confiscations  in  any  case,  for  the  cause  stated.  How  can  this 
court  say,  that  this  is  a  case  where,  for  the  cause  stated,  or  for  some 
other,  confiscation  may  lawfully  be  decreed  ?  We  can  discover  no 
sound  reason  why  a  corporation  existing  in  England  may  not  as  well 
hold  real  property  in  the  United  States,  as  ordinary  trustees  for  char- 
itable, or  other  purposes  ;  or  as  natural  persons  for  their  own  use.  We 
have  seen  that  the  exemption  of  either  or  all  of  those  persons,  from 
the  jurisdiction  of  the  courts  of  the  State  where  the  property  lies, 
affords  no  such  reason. 

It  is  said  that  a  corporation  cannot  hold  lands,  except  by  permis- 
sion of  the  sovereign  authority.  But  this  corporation  did  hold  the 
land  in  question,  by  permission  of  the  sovereign  authority,  before,  dur- 
ing, and  subsequent  to  the  revolution,  up  to  the  year  1794,  when  the 
Legislature  of  Vermont  granted  it  to  the  town  of  New  Haven  ;  and  the 


430  NATIONALITY.  [PART  I. 

only  question  is,  whether  this  grant  was  not  void  by  force  of  the  sixth 
article  of  the  above  treaty  ?     We  think  it  was. 

Was  it  meant  to  be  contended,  that  the  plaintiffs  are  not  within  the 
protection  of  this  article,  because  they  are  not  persons  who  could  take 
part  in  the  war,  or  who  can  be  considered  by  the  court  as  British  sub- 
jects ?  If  this  were  to  be  admitted,  it  would  seem  to  follow,  that  a 
corporation  cannot  lose  its  title  to  real  estate,  upon  the  ground  of 
alienage,  since,  in  its  civil  capacity,  it  cannot  be  said  to  be  born  under 
the  allegiance  of  any  sovereign.  But  this  would  be  to  take  a  very 
incorrect  view  of  the  subject.  In  the  case  of  The  Bank  of  the  United 
States  V.  Deveaux,  5  Cranch's  Rep.  86,  it  was  stated  by  the  court, 
that  a  corporation,  considered  as  a  mere  legal  entity,  is  not  a  citizen, 
and,  therefore,  could  not,  as  such,  sue  in  the  courts  of  the  United 
States,  unless  the  rights  of  the  members  of  it,  in  this  respect,  could  be 
exercised  in  their  corporate  name.  It  was  added,  that  the  name  of 
the  corporation  could  not  be  an  alien  or  a  citizen;  but  the  corporation 
may  be  the  one  or  the  other,  and  the  controversy  is,  in  fact,  between 
those  persons  and  the  opposing  party. 

But  even  if  it  were  admitted  that  the  plaintiffs  are  not  within  the 
protection  of  the  treaty,  it  would  not  follow  that  their  right  to  hold 
the  land  in  question  was  devested  by  the  act  of  1794,  and  became 
vested  in  the  town  of  New  Haven.  At  the  time  when  this  law  was 
enacted,  the  plaintiffs,  though  aliens,  had  a  complete,  though  defeasi- 
ble, title  to  the  land,  of  which  they  could  not  be  deprived  for  the  cause 
of  alienage,  but  by  an  inquest  of  office ;  and  no  grant  of  the  State 
could,  upon  the  principles  of  the  common  law,  be  valid,  until  the  title 
of  the  State  was  so  established.  Fairfax's  Devisee  v.  Hunter  s  Lessee, 
7  Cranch's  Rep.  503.  Nor  is  it  pretended  by  the  counsel  for  the 
defendants,  that  this  doctrine  of  the  common  law  was  changed  by  any 
statute  law  of  the  State  of  Vermont,  at  the  time  when  this  land  was 
granted  to  the  town  of  New  Haven.  This  case  is  altogether  unlike 
that  of  Smith  v.  The  State  of  llari/land,  6  Cranch's  Rep.  286,  which 
turned  upon  an  act  of  that  State,  passed  in  the  year  1780,  during  the 
revolutionary  war,  which  declared,  that  all  property  within  the  State, 
belonging  to  British  subjects,  should  be  seized,  and  was  thereby  con- 
fiscated to  the  use  of  the  State ;  and  that  the  commissioners  of  con- 
fiscated estates  should  be  taken  as  being  in  the  actual  seisin  and 
possession  of  the  estates  so  confiscated,  without  any  office  found,  entry, 
or  other  act  to  bo  done.  The  law  in  question  passed  long  after  the 
treaty  of  1783,  and  without  confiscating  or  forfeiting  this  land  (even 
if  that  could  be  legally  done),  grants  the  same  to  the  town  of  New 
Haven. 

3.    The  last  question  respects  the  effect  of  the  late  war,  between 


CHAP.  IV.]      PROPAGATION   OF   GOSPEL   V.    NEW   HAVEN.  431 

Great  Britain  and  the  United  States,  upon  rights  existing  under  the 
treaty  of  peace.  Under  this  head,  it  is  contended  by  the  defendants' 
counsel,  that  although  the  plaintiffs  were  protected  by  the  treaty  of 
peace,  still,  the  effect  of  the  last  war  was  to  put  an  end  to  that  treaty, 
and,  consequently,  to  civil  rights  derived  under  it,  unless  they  had 
been  revived  and  preserved  by  the  treaty  of  Ghent. 

If  this  argument  were  to  be  admitted  in  all  its  parts,  it  nevertheless 
■would  not  follow,  that  the  plaintiffs  are  not  entitled  to  a  judgment  on 
this  special  verdict.  The  defendants  claim  title  to  the  land  in  con- 
troversy solely  under  the  act  of  1794,  stated  in  the  verdict,  and  con- 
tend, that  by  force  of  that  law,  the  title  of  the  plaintiffs  was  devested. 
But  if  the  court  has  been  correct  in  its  opinion  upon  the  two  first 
points,  it  will  follow,  that  the  above  act  was  utterly  void,  being  passed 
in  contravention  of  the  treaty  of  peace,  which,  in  this  respect,  is  to  be 
considered  as  the  supreme  law.  Eemove  that  law,  then,  out  of  the 
case,  and  the  title  of  the  plaintiffs,  confirmed  by  the  treaty  of  1794, 
remains  unaffected  by  the  last  war,  it  not  appearing  from  the  verdict, 
that  the  land  was  confiscated,  or  the  plaintiffs'  title  in  any  way  de- 
vested, during  the  war,  or  since,  by  office  found,  or  even  by  any  legis- 
lative act. 

But  there  is  a  still  more  decisive  answer  to  this  objection,  which  is, 
that  the  termination  of  a  treaty  cannot  devest  rights  of  property 
already  vested  under  it. 

If  real  estate  be  purchased  or  secured  under  a  treaty,  it  would  be 
most  mischievous  to  admit,  that  the  extinguishment  of  the  treaty 
extinguished  the  right  to  such  estate.  In  truth,  it  no  more  affects 
such  rights,  than  the  repeal  of  a  municipal  law  affects  rights  acquired 
under  it.  If,  for  example,  a  statute  of  descents  be  repealed,  it  has 
never  been  supposed,  that  rights  of  property  already  vested  during  its 
existence,  were  gone  by  such  repeal.  Such  a  construction  would  over- 
turn the  best  established  doctrines  of  law,  and  sap  the  very  foundation 
on  which  property  rests. 

But  we  are  not  inclined  to  admit  the  doctrine  urged  at  the  bar,  that 
treaties  become  extinguished,  ijiso  facto,  by  war  between  the  two 
governments,  unless  they  should  be  revived  by  an  express  or  implied 
renewal  on  the  return  of  peace.  Whatever  may  be  the  latitude  of 
doctrine  laid  down  by  elementary  writers  on  the  law  of  nations,  deal- 
ing in  general  terms  in  relation  to  this  subject,  we  are  satisfied,  that 
the  doctrine  contended  for  is  not  universally  true.  There  may  be 
treaties  of  such  a  nature,  as  to  their  object  and  import,  as  that  war 
will  put  an  end  to  them  ;  but  where  treaties  contemplate  a  permanent 
arrangement  of  territorial,  and  other  national  rights,  or  whicli,  in  their 
terms,  are  meant  to  provide  for  the  event  of  an  intervening  war,  it 


432  NATIONALITY.  [PART   I. 

would  be  agaiust  every  principle  of  just  interpretation  to  hold  them 
extinguished  by  the  event  of  war.  If  such  were  the  law,  even  the 
treaty  of  1783,  so  far  as  it  fixed  our  limits,  and  acknowledged  our  in- 
dependence, would  be  gone,  and  we  should  have  had  again  to  struggle 
for  both  upon  original  revolutionary  principles.  Such  a  construction 
was  never  asserted,  and  would  be  so  monstrous  as  to  supersede  all 
reasoning. 

We  think,  therefore,  that  treaties  stipulating  for  permanent  rights 
and  general  arrangements,  and  professing  to  aim  at  perpetuity,  and  to 
deal  with  the  case  of  war  as  well  as  of  peace,  do  not  cease  on  the  occur- 
rence of  war,  but  are,  at  most,  only  suspended  while  it  lasts  ;  and 
unless  they  are  waived  by  the  parties,  or  new  and  repugnant  stipula- 
tions are  made,  they  revive  in  their  operation  at  the  return  of  peace, 

A  majority  of  the  court  is  of  opinion,  that  judgment  upon  this  special 
verdict  ouglit  to  be  given  for  the  plaintiffs,  which  opi.nion  is  to  be 
certified  to  the  circuit  court. 

Certificate  for  the  plaintiffs.^ 

1  "  The  passage  cited  by  counsel  from  the  language  of  Mr.  Justice  Washington  in 
Sociefij  for  the  Propagation  of  the  Gospel  v.  New  Haven,  %  Wheat.  464,  493,  also  illus- 
trates this  doctrine.  There  the  learned  justice  observes  tiiat  '  if  real  estate  be  pur- 
chased or  secured  under  a  treaty,  it  would  be  most  mischievous  to  admit  tliat  the 
extinguisliment  of  the  treaty  extinguislied  the  riglit  to  sucii  estate.  In  trutii,  it  no 
more  atfects  such  rigiits  than  tlie  repeal  of  a  municipal  law  affects  riglits  acquired  un- 
der it.'  Of  this  doctrine  tliere  can  be  no  question  in  this  court."  The  Chinese  Ex- 
clusion Case,  1888,  130  U.  S.  581,  610. 

To  the  same  effect  Fiott  et  als.  v.  Coinmonweakh,  1855,  12  Gratt.  564,  577,  wliere  it 
is  said :  "  But  it  has  been  determined  by  the  Supreme  Court  that  the  termination  of  a 
treaty  by  war  does  not  divest  rights  of  property  alreadj'  vested  under  it.  Society  for, 
i-c.  V.  Neui  Haven,  8  Wiieat.  R.  464.     Fox  v.  Soalhack,  12  Mass.  R.  143." 

The  following  is  a  well-icnown  diplomatic  exemplification  of  the  rule  of  the  prin- 
cipal case.  By  the  treaty  of  1783,  between  Great  Britain  and  the  United  States,  tlie 
latter  secured  certain  fishery  privileges  upon  tlie  coast  of  Newfoundland,  Nova  Scotia, 
and  Labrador.  Great  Britain  claimed  that  the  privilege  was  a  mere  commercial  regu- 
lation and  as  such  abrogated  by  the  war  of  1812.  The  United  States  maintained, 
on  the  contrary,  tliat  the  privilege  operated  as  a  grant,  and  was  at  most  only  suspended 
not  abrogated  by  the  war.  Tiie  correctness  of  the  Britisli  contention  is  recognized 
in  "  the  convention  of  1818  "  between  the  two  countries.  See  Hall,  Inter.  Law,  9'J-102, 
for  this  and  other  instances.     Pomeroy,  oGb-o71.  —  Ed. 


CHAP.  IV.]  HOOPER,    ADM'r,    V.    UNITED    STATES.  433 


HOOPER,  ADM'R,  v.  UNITED   STATES,  AND  OTHER  CASES, 

18S7. 

(22  Court  of  Claims,  408,  416.)  » 

Davis,  J.  The  treaties  of  1778,  particularly  the  treaty  of  com- 
merce, which  is  the  most  important  one  for  our  purposes,  were  in 
existence  until  the  passage  of  the  abrogating  act.  Whatever  disputes 
occurred  between  this  country  and  France  during  the  disputed  period 
following  the  conclusion  of  the  Jay  Treaty  arose  from  ditferences  of 
interpretation  of  various  clauses  of  the  Franco-American  treaty,  and 
on  neither  side  do  we  find  seriously  advanced  a  contention  that  the 
treaties  were  not  in  existence  and  were  not  binding  on  both  nations. 
The  United  States  distinctly  urged  their  enduring  force,  while  the 
French  departed  from  this  position  only  in  this  (if  it  be  a  departure), 
that  the  Jay  Treaty  introduced  a  modification  into  their  treat}^  with  us 
of  which  they  were  entitled  to  the  benefit. 

As  to  the  period  after  July  7,  1798: 

On  that  date  the  abrogating  act  passed  by  Congress  was  approved  by 
the  President  and  became  a  law  within  the  jurisdiction  of  the  Con- 
stitution; a  law  replacing  to  that  extent  the  treaties,  and  binding  upon 
all  the  subordinate  agents  of  the  nation,  including  its  courts,  but  not 
necessarily  final  as  the  annulment  of  an  existing  contract  between  two 
sovereign  powers, 

A  treaty  which  on  its  face  is  of  indefinite  duration,  and  which  con- 
tains no  clause  providing  for  its  termination,  may  be  annulled  by  one 
of  the  parties  under  certain  circumstances.  As  between  the  nations  it 
is  in  its  nature  a  contract,  and  if  the  consideration  fail,  for  example, 
or  if  its  important  provisions  be  broken  by  one  party,  the  other  may, 
at  its  option,  declare  it  terminated.  The  United  States  have  so  Held 
in  regard  to  the  Clayton-Bulwer  Treaty,  as  to  which  Mr.  Frelinghuysen, 
then  Secretary  of  State,  wrote  Mr,  Hall,  minister  in  Central  America 
(July  19,  1884)  :  "The  Clayton-Bulwer  Treaty  was  voidable  at  the 
option  of  the  United  States.  This,  I  think,  has  been  demonstrated 
fully  upon  two  grounds.  First,  that  the  consideration  of  the  treaty 
having  failed,  its  object  never  having  been  accomplished,  the  United 
States  did  not  receive  that  for  which  they  covenanted  ;  and,  second, 
that  Great  Britain  has  persistently  violated  her  agreement  not  to 
colonize  the  Central  American  coast." 

*  Only  so  much  of  Uie  opinion  is  given  as  relates  to  annulment  of  treaties.  — Ed. 

2b 


•434  NATIONALITY.  [PART   I. 

Here  concur  two  clear  reasons  for  annulment,  failure  of  consider- 
ation and  an  active  breach  of  contract.^ 

Abrogation  of  a  treaty  may  occur  by  change  of  circumstances,  as  : 
"  When  a  state  of  things  which  was  the  basis  of  the  treaty,  and  one 
of  its  tacit  conditions,  no  longer  exists.  In  most  of  the  old  treaties 
were  inserted  the  clausula  rebus  sic  stantibus,  by  which  the  treaty 
might  be  construed  as  abrogated  when  material  circumstances  on 
which  it  rested  changed.  To  work  this  effect  it  is  not  necessary 
that  the  facts  alleged  to  have  changed  should  be  material  conditions. 
It  is  enough  if  they  were  strong  inducements  to  the  party  asking 
abrogation. 

"The  maxim  '  Conventio  omnis  intelUgltur  rebus  sic  sta7itibus'  is  held 
to  apply  to  all  cases  in  which  the  reason  for  a  treaty  has  failed,  for 
there  has  been  such  a  change  of  circumstances  as  to  make  its  perform- 
ance impracticable  except  at  an  unreasonable  sacrifice."  "Wharton's 
Com.  Am.  Law,  §  161. 

"  Treaties,  like  other  contracts,  are  violated  when  one  party  neglects 
or  refuses  to  do  that  which  moved  the  other  party  to  engage  in  the 
transaction.  *  *  *  When  a  treaty  is  violated  by  one  party  in  one  or 
more  of  its  articles,  the  other  can  regard  it  as  broken  and  demand 
redress,  or  can  still  require  its  observance."     Woolsey,  §  112. 

The  United  States  annulled,  or  at  least  attempted  to  annul,  the 
treaties  with  France  upon  the  grounds,  stated  in  the  preamble  of  the 
statute,  that  the  treaties  had  been  repeatedly  violated  by  France,  that 
the  claims  of  the  United  States  for  reparation  of  the  injuries  com- 
mitted against  them  had  been  refused  ;  that  attempts  to  negotiate  had 
been  repelled  with  indignity  and  that  there  was  still  being  pursued 
against  this  country  a  system  of  '•  predatory  violence  infracting  the 
said  treaties  and  hostile  to  the  rights  of  a  free  and  independent 
nation."  Such  were  the  charges  upon  which  was  based  the  enactment 
that  "the  United  States  are  of  right  freed  and  exonerated  from  the 
stipulations  of  the  treaty  and  of  the  consular  convention  heretofore 

1  The  court  is  obliged  to  follow  the  decision  of  the  political  department  as  to  the 
existence  or  non-existence  of  a  treaty.  If  the  treaty  is  really  binding,  its  violation 
would  give  rise,  in  terms  of  private  law.  to  an  action  for  the  hreacii  of  contract  whicli, 
in  international  law,  would  be  prosecuted  between  nation  and  nation,  that  is  diplomati- 
cally, and  might  result  in  war  if  the  injury  complained  of  be  not  redressed  by  tlie 
defendant  state.     Hart,  211. 

As  to  the  provisions  of  the  Clayton-Bulwer  Treaty  and  its  somewhat  checkered 
career,  see  T.  J.  Lawrence's  Essays  on  International  Law,  2d  cd..  pp.  89-162;  the  late 
Freeman  Snow  in  3  Ilarv.  Law  Hev.  53-73  ;  C.  H.  Hyde  (The  Isthmian  Canal  Treaty), 
in  15  ib.  725-732.  The  Hay-Pauncefote  Treaty  of  Nov.  18,  1901,  put  an  end  to  this 
unfortunate  controversy,  ami  with  its  ratification  on  Dec.  IG,  1901,  Clayton,  Bulwer, 
and  their  treaty  were  laid  to  rest.  —  Ed. 


CHAP.  IV.]  HOOPER,    ADM'r,    V.    UNITED    STATES.  435 

ooncliuled  between  the  United  States  and  Trance,  and  that  the  same 
shall  not  henceforth  be  regarded  as  legally  obligatory  on  the  govern- 
ment or  citizens  of  the  United  States." 

The  treaties,  therefore,  ceased  to  be  a  part  of  the  snpreme  law  of 
the  land,  and  when  Chief  Justice  Marshall  stated,  in  July,  1799, 
Chirac  v.  Chirac,  2  Wheaton,  272,  that  there  was  no  treaty  in 
existence  between  the  two  nations,  he  meant  only  that  within  the 
jurisdiction  of  the  Constitution  the  treaties  had  ceased  to  exist,  and 
did  not  mean  to  decide,  what  it  was  exclusively  within  the  power  of 
the  political  branch  of  the  government  to  decide,  that,  as  a  contract 
between  two  nations  the  treaties  had  ceased  to  exist  by  the  act  of  one 
party,  a  result  which  the  French  ministers  afterwards  said  could  be 
reached  only  by  a  successful  war. 

The  only  question  that  we  have  now  to  consider  is  that  of  the  inter- 
national relation.  The  annnlling  act  issued  from  competent  authority 
and  was  the  official  act  of  the  government  of  the  United  States.  So 
far  as  it  was  in  the  power  of  one  party  to  abrogate  these  treaties  it 
was  indisputably  done  by  the  act  of  Juh'  7,  1798.  Notwithstanding 
this  statute,  did  not  the  treaties  remain  in  effect  to  this  extent,  if  no 
further,  that  they  furnish  a  scale  by  which  the  acts  of  France,  which 
"we  are  charged  to  examine,  are  to  be  weighed  ;  and  in  considering  the 
legality  of  those  acts  are  we  not  to  follow  the  treaties  wliere  they 
vary  the  law  of  nations?  The  claimants  in  very  learned  and  philo- 
sophical arguments  contend  for  the  affirmative. 

We  are  of  the  opinion  that  the  circumstances  justified  the  United 
States  in  annulling  the  treaties  of  1778 ;  that  the  act  was  a  valid  one, 
not  only  as  a  municipal  statute,  but  as  between  the  nations  ;  and  that 
thereafter  the  compacts  were  ended.  "We  fail  to  find  any  agreement 
by  France  as  to  these  claims  to  submit  to  the  treaty  rules  after  July  7, 
1798,  the  treaties  not  being  recognized  by  us,  and  we  conclude  that  the 
validity  of  claims  not  expressly  mentioned  in  the  treaty  of  1800, 
which  arose  after  Jul}^  7,  1798,  is  to  be  ascertained  by  the  principles 
of  the  law  of  nations,  recognized  at  that  time,  and  not  by  exceptional 
provisions  found  in  the  treaties  of  1778.^ 

^  On  the  subject  of  treaties  generally,  see  Butler's  Treaty-Making  Power,  2  vols. 
1902,  for  an  exposition  of  power  to  conclude  treaties,  together  with  an  examination  of 
the  treaties  themselves  and  tiie  construction  courts  of  justice  have  put  upon  them. 

The  appendix  to  Vol.  II.  contains  an  alphabetical  summary  of  every  treaty  and 
convention  (other  than  postal),  concluded  by  the  United  States  and  ratified  by  the 
Senate.  — Ed. 


436  NATIONALITY.  [PART   I. 

TERLTNDEN^   v.   AMES. 
Supreme  Court  of  the  United  States,  1901. 

(184  United  States,  270.) 

One  Terlinden,  alias  Graefe,  was  accused  of  various  acts  of  forgery, 
counterfeiting,  and  the  utterance  of  foi-ged  papers,  committed  during 
the  year  1901,  in  the  kingdom  of  Prussia.  After  the  commission  of 
these  extradictable  offences  he  fled  from  Germany  and  was  appre- 
hended in  Illinois  in  1901,  as  a  fugitive  from  justice  upon  a  warrant 
properly  issued  by  Mark  A.  Eoote,  United  States  Commissioner  for  the 
Northern  District  of  Illinois,  upon  the  duly  verified  complaint  of  Dr, 
Walther  Wever,  Imperial  German  Consul  at  Chicago.  On  habeas  cor- 
pus proceedings,  the  District  Court  found  that  the  accused  was  law- 
fully restrained  of  his  liberty,  and  the  prisoner  was  remanded  to  the 
custody  of  John  C.  Ames,  Marshal  for  the  Northern  District  of 
Illinois. 

From  this  order  an  appeal  was  taken  to  the  Supreme  Court  of  the 
United  States.  Among  the  errors  assigned,  were  the  following  two  : 
that  the  District  Court  erred  in  declining  to  hold  that  no  treaty  exists 
between  the  United  States  and  the  kingdom  of  Prussia  or  the  German 
Empire,  and  in  assuming  the  existence  of  such  treaty.^ 

Mr.  Chief  Justice  Fuller  delivered  the  opinion  of  the  court.* 

This  brings  us  to  the  real  question,  namely,  the  denial  of  the 
existence  of  a  treaty  of  extradition  between  the  United  States  and 
the  Kingdom  of  Prussia,  or  the  German  Empire.  In  these  proceed- 
ings the  application  was  made  by  the  official  representative  of  both 
the  Empire  and  the  Kingdom  of  Prussia,  but  -was  based  on  the  ex- 

1  This  statement  is  substituted  for  that  of  the  report.  —  Ed. 

2  In  tiie  omitted  portion  of  tiie  opinion,  the  learned  chief  justice  held  that  extra- 
dition proceedings  before  a  committing  magistrate,  thereto  duly  authorized,  where 
jurisdiction  exists,  and  there  is  competent  legal  evidence  tending  to  establish  the 
criminality  alleged,  cannot  be  interfered  with  by  habeas  corpus ;  that  in  tliis  case  the  writ 
of  habeas  corpus  was  issued  before  the  examination  by  the  commissioner  was  entered 
upon,  and  the  inquiry  was  confined  to  the  question  of  jurisdiction  ;  that  in  this  case 
lie  liad  jurisdiction  if  there  was  a  treaty  between  this  and  the  demanding  country 
provided  the  commission  of  an  extraditable  offence  was  charged  (from  the  liead- 
note).  In  reaching  this  conclusion  the  learned  chief  justice  cited,  examined,  and  ap- 
proved tlie  following  authorities:  In  re  Stupp,  1875,  12  Blatch.  501;  Ornelas  v.  Ruiz, 
181)5,  161  U.  S.  602  ;  Bryant  v.  U.  S.,  1896,  167  U.  S.  104;  Cracrner  v.  Washington,  1897, 
168  U.S.  124.  — Ed. 


CHAP.  IV.]  TERLINDEN     V.   AMES.  437 

tradition  treaty  of  1852.  The  contention  is  that,  as  the  result  of  the 
formation  of  the  German  Empire,  this  treaty  had  been  terminated  by 
operation  of  law. 

Treaties  are  of  different  kinds  and  terminable  in  different  ways. 
The  fifth  article  of  this  treaty  provided,  in  substance,  that  it  sliould 
continue  in  force  until  1858,  and  thereafter  until  the  end  of  a  twelve 
months'  notice  by  one  of  the  parties  of  the  intention  to  terminate  it. 
No  such  notice  has  ever  been  given,  and  extradition  has  been  fre- 
quently awarded  under  it   during  the  entire  intervening  time. 

Undoubtedly  treaties  may  be  terminated  by  the  absorption  of 
powers  into  other  nationalities  and  the  loss  of  separate  existence,  as 
in  the  case  of  Hanover  and  Nassau,  which  became  by  conquest  incor- 
porated into  the  Kingdom  of  Prussia  in  1866.  Cessation  of  indepen- 
dent existence  rendered  the  execution  of  treaties  impossible.  But 
where  sovereignty  in  that  respect  is  not  extinguished,  and  the  power 
to  execute  remains  nnimpaired,  outstanding  treaties  cannot  be  regarded 
as  avoided  because  of  impossibility  of  performance. 

This  treaty  was  entered  into  by  his  Majesty  the  King  of  Prussia  in 
his  own  name  and  in  the  names  of  eighteen  other  States  of  the  Ger- 
manic Confederation,  including  the  Kingdom  of  Saxony  and  the  free 
city  of  Frankfort,  and  was  acceded  to  by  six  other  States,  including 
the  Kingdom  of  Wurtemburg,  and  the  free  Hanseatic  city  of  Bremen, 
but  not  including  the  Hanseatic  free  cities  of  Hamburg  and  Lubeck. 
The  war  between  Prussia  and  Austria  in  1866  resulted  in  the  extinc- 
tion of  the  Germanic  Confederation  and  the  absorption  of  Hanover, 
Hesse,  Cassel,  Nassau  and  the  free  city  of  Frankfort,  by  Prussia. 

The  North  German  Union  was  then  created  under  the  praesidium 
of  the  Crown  of  Prussia,  and  our  minister  to  Berlin,  George  Bancroft, 
thereupon  recognized  officially  not  only  the  Prussian  Parliament,  but 
also  the  Parliament  of  the  North  German  United  States,  and  the 
collective  German  Customs  and  Commerce  Union,  upon  the  ground 
that  by  the  paramount  constitution  of  the  North  German  United 
States,  the  King  of  Prussia,  to  whom  he  was  accredited,  was  at  the 
head  of  those  several  organizations  or  institutions ;  and  his  action  was 
entirely  approved  by  this  Government.  Messages  and  Documents, 
Dep.  of  State,  1867-8,  Part  I,  p.  601 ;  Dip.  Correspondence,  Secretary 
Seward  to  Mr.  Bancroft,  Dec.  9,  1867. 

February  22,  1868,  a  treaty  relative  to  naturalization  was  concluded 
between  the  United  States  and  his  Majesty,  the  King  of  Prussia,  on 
behalf  of  the  North  German  Confederation,  the  third  article  of  which 
read  as  follows  :  "  The  convention  for  the  mutual  delivery  of  criminals, 
fugitives  from  justice,  in  certain  cases,  concluded  between  the  United 
States  on  the  one  part  and  Prussia  and  other  States  of  Germany  on 


438  NATIONALITY.  [PART  I. 

the  other  part,  the  sixteenth  da}*  of  June,  one  thousand  eight  hundred 
and  fifty-two,  is  hereby  extended  to  all  the  States  of  the  Xorth  Ger- 
man Confederation."  15  Stat.  615.  This  recognized  the  treaty  as 
still  in  force,  and  brought  the  Republics  of  Lubeck  and  Hamburg 
within  its  scope.  Treaties  were  also  made  in  that  year  between  the 
United  States  and  the  Kingdoms  of  Bavaria  and  Wurtemburg,  con- 
cerning naturalization,  which  contained  the  provision  that  the  previous 
conventions  between  them  and  the  United  States  in  respect  of  fugitives 
from  justice  should  remain  in  force  without  change. 

Then  came  the  adoption  of  the  Constitution  of  the  German  Empire. 
It  found  the  King  of  Prussia,  the  chief  executive  of  the  North  German 
Union,  endowed  with  power  to  carry  into  effect  its  international 
obligations,  and  those  of  his  kingdom,  and  it  perpetuated  and  con- 
firmed that  situation.  The  official  promulgation  of  that  Constitution 
recited  that  it  was  adopted  instead  of  the  Constitution  of  the  North 
German  Union,  and  its  preamble  declared  that  "his  Majest}^  the  King 
of  Prussia,  in  the  name  of  the  North  German  Union,  his  Majesty  the 
King  of  Bavaria,  his  Majesty  the  King  of  Wurtemburg,  his  Highness 
the  Grand  Duke  of  Baden,  and  his  Eoyal  Highness  the  Grand  Duke 
of  Hesse  and  by  Ehine  for  those  parts  of  the  Grand  Duchy  of  Hesse 
which  are  situated  south  of  the  ]\Iain,  conclude  an  eternal  alliance  for 
the  protection  of  the  territory  of  the  Confederation,  and  of  the  laws 
of  the  same,  as  well  as  for  the  promotion  of  the  welfare  of  the  German 
people."  As  we  have  heretofore  seen,  the  laws  of  the  Empire  were 
to  take  precedence  of  those  of  the  individual  States,  and  it  was  vested 
with  the  power  of  general  legislation  in  respect  of  crimes. 

Article  11  read,  "  The  King  of  Prussia  shall  be  the  president  of  the 
Confederation,  and  shall  have  the  title  of  German  Emperor.  The 
Emperor  shall  represent  the  Empire  among  nations,  declare  w^ar, 
and  conclude  peace  in  the  name  of  the  same  ;  enter  into  alliances 
and  other  conventions  with  foreign  countries,  accredit  ambassadors,  and 
receive  them.  ...  So  far  as  treaties  with  foreign  countries  refer  to 
matters  which,  according  to  Article  IV.  are  to  be  regulated  by  the 
legislature  of  the  Empire,  the  consent  of  the  Federal  Council  shall  be 
required  for  their  ratification,  and  the  approval  of  the  Diet  shall 
be  necessary  to  render  them  valid." 

It  is  contended  that  the  words  in  the  preamble  translated  "an 
eternal  alliance"  should  read  "an  eternal  union,"  but  this  is  not 
material,  for  admitting  that  the  Constitution  created  a  com]30site  State 
instead  of  a  system  of  confederated  States,  and  even  that  it  was 
called  a  confederated  Empire  rather  to  save  the  amour  propre  of  some 
of  its  component  parts  than  otherwise,  it  does  not  necessarily  follow 
that  the  Kingdom  of  Prussia  lost  its  identity  as  such,  or  that  treaties 


CHAP.  IV.]  TERLINDEN   V.   AMES.  439 

theretofore  entered  into  by  it  could  not  be  performed  either  in  the 
name  of  its  King  or  that  of  the  Emperor.  We  do  not  find  in  this 
constitution  any  provision  which  in  itself  operated  to  abrogate  existing 
treaties  or  to  affect  the  status  of  the  Kingdom  of  Prussia  in  that 
regard.  Nor  is  there  anything  in  the  record  to  indicate  that  out- 
standing treaty  obligations  have  been  disregarded  since  its  adoption. 
So  far  from  that  being  so,  those  obligations  have  been  faithfully 
observed. 

And  without  considering  whether  extinguished  treaties  can  be 
renewed  by  tacit  consent  under  our  Constitution,  we  think  that  on 
the  question  whether  this  treaty  has  ever  been  terminated,  govern- 
mental action  in  respect  to  it  must  be  regarded  as  of  controlling  im- 
portance. During  the  period  from  1871  to  the  present  day,  extradition 
from  this  country  to  Germany,  and  from  Germany  to  this  country, 
has  been  frequently  granted  under  the  treaty,  which  has  thus  been, 
repeatedly  recognized  by  both  governments  as  in  force.  Moore's 
Report  on  Extradition  with  Returns  of  all  Cases,  1890. 

In  1889,  in  response  to  a  request  for  information  on  international 
extradition  as  practised  by  the  German  Government,  the  Imperial 
Foreign  Office  transmitted  to  our  charge  at  Berlin  a  memorial  on  the 
subject,  in  the  note  accompanying  which  it  was  said:  *' The  questions 
referred  to,  in  so  far  as  they  could  not  be  uniformly  answered  for 
all  the  confederated  German  States,  have  been  answered  in  that 
document  as  relating  to  the  case  of  applications  for  extradition 
addressed  to  the  Empire  or  Prussia."  It  was  stated  in  the  memorial, 
among  other  things: 

"  In  so  far  as  by  laws  and  treaties  of  the  Empire  relating  to  the 
extradition  of  criminals,  provisions  which  bind  all  the  States  of  the 
union  have  not  been  made,  those  States  are  not  hindered  from  in- 
dependently regulating  extradition  by  agreements  with  foreign  States, 
or  by  laws  enacted  for  their  own  territory. 

"  Of  conventions,  some  of  an  earlier,  some  of  a  later  period,  for  the 
extradition  of  criminals,  entered  into  by  individual  States  of  the 
union  with  various  foreign  States,  there  exist  a  number,  and  in  par- 
ticular such  with  France,  the  Netherlands,  Austria-Hungary,  and 
Russia.  With  the  United  States  of  America,  also,  extradition  is 
regulated  by  various  treaties,  as,  besides  the  treaty  of  June  16,  1852, 
which  applies  to  all  of  the  States  of  the  former  North  German  Union, 
and  also  to  Hesse,  south  of  the  Main,  and  to  Wiirtemburg,  there  exist 
separate  treaties  with  Bavaria  and  Baden,  of  September  12,  1853,  and 
January  30,  1857,  respectively."     Moore's  Report,  93,  94. 

Thus  it  appears  that  the  German  Government  has  officially  recog- 
nized, and  continues  to  recognize,  the  treaty  of  June  IC,  1852,  as  still 


440  NATIONALITY.  [PART  I. 

in  force,  as  well  as  similar  treaties  with  other  members  of  the  Em- 
pire, so  far  as  the  latter  has  not  taken  specific  action  to  the  contrary 
or  in  lieu  thereof.  And  see  Laband,  Das  Staatsrecht  des  Deutschen 
Eeiches  (1894),  122,  123,  124,  142. 

It  is  out  of  the  question  that  a  citizen  of  one  of  the  German  States, 
charged  with  being  a  fugitive  from  its  justice,  should  be  permitted 
to  call  on  the  courts  of  this  country  to  adjudicate  the  correctness  of 
the  conclusions  of  the  Empire  as  to  its  powers  and  the  powers  of  its 
members,  and  especially  as  the  executive  department  of  our  govern- 
ment has  accepted  these  conclusions  and  proceeded  accordingly. 

The  same  is  true  as  respects  many  other  treaties  of  serious  moment, 
with  Prussia,  and  with  particular  States  of  the  Empire,  and  it  would 
be  singular,  indeed,  if  after  the  lapse  of  years  of  performance  of  their 
stipulations,  these  treaties  must  be  held  to  have  terminated  because 
of  the  inability  to  perform  during  all  that  time  of  one  of  the 
parties. 

In  the  notes  accompanying  the  State  Department's  compilation 
of  Treaties  and  Conventions  laetween  the  United  States  and  otlier 
powers,  published  in  1889,  Mr.  J.  C.  Bancroft  Davis  treats  of  the 
subject  thus  : 

"  The  establishment  of  the  German  Empire  in  1871,  and  the  com- 
plex relations  of  its  component  parts  to  each  other  and  to  the  Empire, 
necessarily  give  rise  to  questions  as  to  the  treaties  entered  into  with 
the  Xorth  German  Confederation  and  with  many  of  the  States  com- 
posing the  Empire.  It  cannot  be  said  that  any  fixed  rules  have  been 
establislied. 

"  Where  a  State  has  lost  its  separate  existence,  as  in  the  case  of 
Hanover  and  Nassau,  no  questions  can  arise. 

"  Where  no  new  treaty  has  been  negotiated  with  the  Empire,  the 
treaties  with  the  various  States  which  have  preserved  a  separate 
existence  have  been  resorted  to. 

"  The  question  of  the  existence  of  the  extradition  treaty  with 
Bavaria  was  presented  to  the  United  States  District  Court,  on  the 
application  of  a  person  accused  of  forgery  committed  in  Bavaria,  to 
be  discharged  on  habeas  corpus,  who  was  in  custody  after  the  issue  of  a 
mandate,  at  the  request  of  the  minister  of  Germany.  The  court 
held  that  the  treaty  was  admitted  by  both  governments  to  be  in 
existence. 

"  Such  a  question  is,  after  all,  purely  a  political  one." 

The  case  there  referred  to  is  that  of  In  re  Thomas,  12  Blatch.  370, 
in  which  the  continuance  of  the  extradition  treaty  with  Bavaria  was 
called  in  question,  and  Mr.  Justice  Blatchford,  then  district  judge, 
said  : 


CHAP.  IV.]  TERLINDEN   V.    AMES.  441 

"  It  is  further  contended,  on  the  part  of  Thomas,  that  the  conven- 
tion with  Bavaria  was  abrogated  by  the  absorption  of  Bavaria  into 
the  German  Empire.  An  examination  of  tlie  provisions  of  the  Con- 
stitution of  the  German  Empire  does  not  disclose  anything  which 
indicates  that  then  existing  treaties  between  the  several  States  com- 
posing the  confederation  called  the  German  Empire,  and  foreign 
countries,  were  annulled,  or  to    be  considered  as  abrogated. 

"  Indeed,  it  is  difficult  to  see  how  such  a  treaty  as  that  between 
Bavaria  and  the  United  States  can  be  abrogated  by  the  action  of 
Bavaria  alone,  without  the  consent  of  the  United  States.  Where  a 
treaty  is  violated  by  one  of  the  contracting  parties,  it  rests  alone  with 
the  injured  party  to  pronounce  it  broken,  the  treaty  being,  in  such 
case,  not  absolutely  void,  but  voidable,  at  the  election  of  the  injured 
party,  who  may  waive  or  remit  the  infraction  committed,  or  may 
demand  a  just  satisfaction,  the  treaty  remaining  obligatory  if  he 
chooses  not  to  come  to  a  rupture.  1  Kent's  Com.  174.  In  the  present 
case  the  mandate  issued  by  the  government  of  the  United  States 
shows  that  the  convention  in  question  is  regarded  as  in  force  both  by 
the  United  States  and  by  the  German  Empire,  represented  by  its  en- 
voys, and  by  Bavaria,  represented  by  the  same  envoy.  The  applica- 
tion of  the  foreign  government  was  made  through  the  proper  diplomatic 
representative  of  the  German  Empire  and  of  Bavaria,  and  the  com- 
plaint before  the  commissioner  was  made  by  the  proper  consular 
authority  representing  the  German  Empire  and  also  representing 
Bavaria." 

We  concur  in  the  view  that  the  question  whether  power  remains  in 
a  foreign  State  to  carry  out  its  treaty  obligations  is  in  its  nature 
political  and  not  judicial,  and  that  the  courts  ought  not  to  interfere 
with  the  conclusions  of  the  political  department  in  that  regard.     ' 

Treaties  of  extradition  are  executory  in  their  character,  and  fall 
within  the  rule  laid  down  by  Chief  Justice  Marshall  in  Foster  v. 
Neilso7i,  2  Pet.  253,  314,  thus :  "  Our  Constitution  declares  a  treaty  to 
be  the  law  of  the  land.  It  is,  consequently,  to  be  regarded  in  courts 
of  justice  as  equivalent  to  an  act  of  the  legislature,  whenever  it 
operates  of  itself  without  the  aid  of  any  legislative  provision.  But 
■when  the  terms  of  the  stipulation  iiuport  a  contract,  when  either  of 
the  parties  engages  to  perform  a  particular  act,  the  treaty  addresses 
itself  to  the  political,  not  the  judicial  department." 

In  Doe  V.  Braden,  16  How.  635,  656,  where  it  was  contended  that 
so  mucli  of  the  treaty  of  February  22,  1819,  ceding  Florida  to  the 
United  States,  as  annulled  a  certain  land  grant,  was  void  for  want  of 
power  in  the  King  of  Spain  to  ratify  such  a  provision,  it  was  held 
that  whether  or  not  the  King  of  Spain  had  power,  according  to  the 


442  NATIONALITY.  [PART  I. 

Constitution  of  Spain,  to  annul  the  grant,  was  a  political  and  not  a 
judicial  question,  and  was  decided  when  the  treaty  was  made  and 
ratified. 

Mr.  Chief  Justice  Taney  said  :  "  The  treaty  is  therefore  a  law  made 
by  the  proper  authority,  and  the  courts  of  justice  have  no  right  to 
annul  or  disregard  any  of  its  provisions,  unless  they  violate  the  Con- 
stitution of  the  United  States.  It  is  their  duty  to  interpret  it  and 
administer  it  according  to  its  terms.  And  it  would  be  impossible  for 
the  executive  department  of  the  government  to  conduct  our  foreign 
relations  with  any  advantage  to  the  country,  and  fulfil  the  duties 
which  the  Constitution  has  imposed  upon  it,  if  every  court  in  the 
country  was  authorized  to  inquire  and  decide  whether  the  person  who 
ratified  the  treaty  on  behalf  of  a  foreign  nation  had  the  power,  by 
its  constitution  and  laws,  to  make  the  engagements  into  which  he 
entered." 

Extradition  may  be  sufficiently  defined  to  be  the  surrender  by  one 
nation  to  another  of  an  individual  accused  or  convicted  of  an  offence 
outside  of  i'ts  own  territory,  and  within  the  territorial  jurisdiction  of 
the  other,  which,  being  competent  to  try  and  to  punish  him,  demands 
the  surrender. 

In  the  United  States,  the  general  opinion  and  practice  have  been 
that  extradition  should  be  declined  in  the  absence  of  a  conventional 
or  legislative  provision.  1  Moore  on  Extradition,  21 ;  United  States  v. 
Bauscher,  119  U.  S.  407. 

The  power  to  surrender  is  cleai'-ly  included  within  the  treaty-making 
power  and  the  corresponding  power  of  appointing  and  receiving  am- 
bassadors and  other  public  ministers.  Holmes  v.  Jennison,  14  Pet. 
540,  569.  Its  exercise  pertains  to  public  policy  and  governmental 
administration,  is  devolved  on  the  executive  authority,  and  the  war- 
rant of  surrender  is  issued  by  the  Secretary  of  State  as  the  represen- 
tative of  the  President  in  foreign  affairs. 

If  it  be  assumed  in  the  case  before  us,  and  the  papers  presented  on 
the  motion  for  a  stay  advise  us  that  such  is  the  fact,  that  the  com- 
missioner, on  hearing,  deemed  the  evidence  sufficient  to  sustain  the 
charges,  and  certified  his  findings  and  the  testimony  to  the  Secretary 
of  State,  and  a  warrant  for  the  surrender  of  Terlinden  on  the  proper 
requisition  was  duly  issued,  it  cannot  be  successfully  contended  that 
the  courts  could  properly  intervene  on  the  ground  that  the  treaty 
under  which  both  governments  had  proceeded,  had  terminated  by 
reason  of  the  adoption  of  the  constitution  of  the  German  Empire,  not- 
withstanding the  judgment  of  both  governments  to  the  contrary. 

The  decisions  of  the  executive  department  in  matters  of  extradi- 
tion, within  its  own  sphere,  and  in  accordance  with  the  Constitution, 


CHAP.  IV.]  "  LA   NINFA."  443 

are  not  open  to  judicial  revision,  and  it  results  that  where  proceedings 
for  extradition,  regularly  and  constitutionally  taken  under  the  acts 
of  Congress,  are  pending,  they  cannot  be  put  an  end  to  by  writs  of 
habeas  corpus. 

The  District  Court  was  right,  and  its  final  order  is 

Affirmed. 

Mr.  Justice  Harlan  did  not  hear  the  argument  and  took  no  part 
in  the  decision  of  the  case.^ 


"LA  NIXFA." 
United  States  Circuit  Court  of  Appeals,  Ninth  Circuit,  1896. 

(75  Federal,  .513.) 

Hawlev,  District  Judge. ^ 

From  these  facts  the  question  arises  whether  Behring  Sea,  at  a 
distance  of  more  than  one  league  from  the  American  shore,  is 
Alaskan  territory,  or  in  the  waters  thereof,  or  within  the  dominion 
of  the  United  States  in  the  waters  of  Behring  Sea.  Section  1956  of 
Revised  Statutes  reads  as  follows: 

"Sec.  1956.  No  person  shall  kill  any  otter,  mink,  marten  or  fur- 
seal,  or  other  fur-bearing  animal,  within  the  limits  of  Alaska  Terri- 
tory, or  in  the  waters  thereof;  *  *  *  and  all  vessels,  their  tackle, 
apparel,  furniture  and  cargo,  found  engaged  in  violation  of  this 
section  shall  be  forfeited,"  «&c. 

Section  3  of  the  act  to  provide  for  the  protection  of  the  salmon 
fisheries  of  Alaska,  approved  March  2,  1889,  provides  that  section 
1956  "is  hereby  declared  to  include  and  apply  to  all  the  dominion 
of  the  United  States  in  the  waters  of  Behring  Sea;  and  it  shall  be 
the  duty  of  the  President,  at  a  timely  season  in  each  year,  to  issue 
his  proclamation  and  cause  the  same  to  be  published  *  *  *  warning 
all  persons  against  entering  said  waters  for  the  purpose  of  violating 
the  provisions  of  said  section,"  &c.  By  these  provisions,  the  ques- 
tion as  to  what  the  boundaries  were  over  which  the  United  States 

1  See  also  Schultze  v.  SchuUze,  189.3,  144  III.  290,  295,  and  15  Harv.  Law  Rev. 
847-848,  for  a  valuable  note  to  principal  case.  As  to  the  effect  of  absorption  of  a 
State  or  province  upon  a  treaty  concluded  by  tlie  State  thus  absorbed  and  a  third  power, 
and  of  oblisations  generally,  see  the  recent  instances  in  Maroon's  Military  Occupation, 
177  -100  ;  .102-.30O ;  .305-313  ;  316-338 ;  529-534  ;  630-G46 ;  Hall's  Int.  Law,  96-105.  —  Ed. 

^  Statement  of  case  in  the  first  part  of  the  opinion  omitted.  —  Ed. 


444  NATIONALITY.  [PAKT   I. 

had  dominion  was  not  intended  to  be,  and  was  not,  determined  by 
the  amendatory  act.  The  question  was  left  open  for  future  consid- 
eration. By  reference  to  the  proceedings  in  Congress,  it  appears  that 
the  amendment  of  section  1956  was  brought  about  iu  tlie  following 
manner:  A  bill  was  introduced  in  the  Senate,  and  passed,  amending 
section  1963  of  the  Revised  Statutes,  and  to  provide  for  better  pro- 
tection of  the  fur-seal  and  salmon  fisheries  in  Alaska,  and  had 
reference  to  fishing  and  fisheries  only.  "When  this  bill  came  to  the 
House  of  Representatives,  an  amendment  was  proposed  and  adopted, 
"that  section  1956  of  the  Revised  Statutes  was  intended  to  include 
and  apply,  and  is  hereby  decreed  to  include  and  apply,  to  all  the 
waters  of  Behring  Sea  in  Alaska  embraced  within  the  boundary  lines 
mentioned  and  described  in  the  treaty  with  Russia,  dated  !March  30, 
1867,  by  which  the  territory  of  Alaska  was  ceded  to  the  United 
States,"  &c.  The  bill  as  thus  amended  was  returned  to  the  Senate. 
The  committee  on  foreign  relations  reported  the  house  amendment 
with  a  recommendation  that  it  be  disagreed  to.  Senator  Morgan, 
of    the  committee,  said: 

*'  That  in  the  report  made  by  the  committee  the  rights  of  the 
Government  of  the  United  States  were  not  considered,  and  not 
intended  to  be  considered.  We  only  arrive  at  the  conclusion  that 
the  question  presented  in  the  amendment  of  the  house  is  of  such  a 
serious  and  important  character  that  the  committee  on  foreign  rela- 
tions would  not  undertake,  at  this  time,  to  pronounce  that  kind  of 
judgment  upon  it  which  is  due  to  the  magnitude  of  such  a  question. 
*  *  *  The  bill,  as  it  passed  the  Senate  originally,  should  pass,  because 
it  protects  the  salmon  and  other  fisheries  in  Alaska,  about  which  there 
is  no  dispute.  But  this  particular  question  is  one  of  very  great  grav- 
ity and  seriousness,  and  the  committee  on  foreign  relations,  or  at 
least  a  majority  of  the  entire  committee,  did  not  feel  warranted  in 
undertaking  to  consider  it  at  this  time." 

Senator  Sherman,  of  the  same  committee,  said : 

"The  question  proposed  by  the  House  to  the  form  of  an  amendment 
was  a  grave  one,  and  had  no  relation  to  the  subject-matter  of  the  bill, 
and  ought  not  to  be  connected  with  it,  —  had  no  connection  really 
with  it,  — and  involved  serious  matters  of  international  law,  perhaps, 
and  of  public  policy,  and  therefore  it  ought  to  be  considered  by 
itself." 

The  amendment  made  by  the  House  was  disagreed  to.  A  committee 
of  conference  was  appointed.  The  result  was  that  the  description 
as  to  the  boundaries  in  the  House  amendment  was  stricken  out,  and 
the  words  "hereby  declared  to  include  and  apply  to  all  the  dominions 
of  the  United  States  in  the  waters  of  Behring  Sea  "  inserted  in  lieu 


CHAP.  IV.]  "  LA   KINFA."  445 

thereof.  It  thus  appears,  as  is  manifest  by  the  act  itself,  that  the 
question  as  to  the  boundaries  over  which  the  United  States  had 
dominion  was  not  intended  to  be,  and  was  not,  determined  when 
the  act  was  passed. 

The  government  relies  solely  upon  the  provisions  of  the  statute  to 
sustain  the  decree  of  the  district  court,  and  contends  that  the  deci- 
sion  of  the  Supreme  Court  in  Re  Cooper,  143  U.  S.  474,  12  Sup.  Ct. 
453,  justifies  the  affirmance  of  the  decree.  That  decision  does  not 
reach  the  direct  point  here  in  controversy.  The  court  there  held  that 
the  question  was  a  political  one,  in  which  the  United  States  had 
asserted  a  doctrine  in  opposition  to  the  views  contended  for  by  the 
petitioner;  that  the  negotiations  were  then  pending  in  relation  to 
the  particular  subject;  but  the  court  declined  to  decide  whether  the 
government  was  right  or  wrong  in  its  contention,  or  to  review  the 
action  of  the  political  departments  upon  the  question  under  review. 
The  opinion  shows  that  the  court  considered  it  a  grave  question.  It 
recites  much  of  the  important  history  relative  to  the  disputed  ques- 
tion, but  the  question  itself  was  not  decided.  The  case  was  disposed 
of  upon  other  grounds.  What  was  said  concerning  the  disputed 
questions  had  reference  to  the  conditions  then  existing.  The  condi- 
tions now  existing  are  entirely  different.  The  negotiations  then 
pending  were  brought  about  by  the  asserted  claim  of  the  United 
States  to  proprietary  rights  in  the  waters  of  Behring  Sea,  and  in  the 
fur-bearing  animals  which  frequent  it  and  its  islands,  which  was  dis- 
puted by  other  nations,  particularly  by  England,  the  property  of 
whose  subjects  had  been  from  time  to  time  seized  by  the  United 
States  for  alleged  violations  of  the  statutes  in  question;  and  these 
controversies  resulted  in  submitting  the  disputed  question  to  an 
arbitration.     27  Stat.  948.     Article  1  provides  that: 

"The  questions  which  have  arisen  between  the  government  of  the 
United  States  and  the  government  of  her  Britannic  majesty,  concern- 
ing the  jurisdictional  rights  of  the  United  States  in  the  waters  of 
Behring  Sea,  and  concerning  also  the  preservation  of  the  fur-seal  in, 
or  habitually  resorting  to  the  said  sea,  and  the  rights  of  the  citizens 
and  subjects  of  eitlier  country,  as  regards  the  taking  of  fur-seal  in, 
or  habitually  resorting  to  the  said  waters,  shall  be  submitted  to  a 
tribunal  of  arbitration." 

The  five  points  submitted  to  the  arbitrators  are  set  forth  in  article 
6,  and,  omitting  the  second,  are  as  follows: 

"(1)  What  exclusive  jurisdiction  in  the  sea,  now  known  as  the 
Behring  Sea,  and  what  exclusive  rights  in  the  seal  fisheries  therein, 
did  Russia  assert  and  exercise  prior  and  up  to  the  time  of  the  cession 
of  Alaska  to  the  United  States? 


446  NATIONALITY.  [PAP.T  I. 

"  (3)  Was  the  body  of  water  now  known  as  the  Behring  Sea 
included  in  the  phrase  '  Pacific  Ocean,'  as  used  in  the  treaty  of  1825 
between  Great  Britain  and  Russia;  and  what  rights,  if  any,  in  the 
Behring  Sea  were  held  and  exclusively  exercised  by  Russia  after 
said  treaty  ? 

"  (4)  Did  not  all  the  rights  of  Russia  as  to  jurisdiction,  and  as  to 
the  seal  fisheries  in  Behring  Sea  east  of  the  water  boundary  in  the 
treaty  between  the  United  States  and  Russia  of  the  30th  March,  1867, 
pass  unimpaired  to  the  United  States  under  that  treaty  ? 

"(5)  Has  the  United  States  any  right,  and,  if  so,  what  right  of 
protection  or  property  in  the  fur-seals  frequenting  the  islands  of  the 
United  States  in  Behring  Sea,  when  such  seals  are  found  outside  the 
ordinary  three-mile  limit  ?" 

The  decision  of  the  arbitrators  upon  these  points  was  as  follows : 
"  (1)  *  *  *  By  the  ukase  of  1821,  Russia  claimed  jurisdiction  in  the 
sea  now  known  as  the  'Behring  Sea'  to  the  extent  of  one  hundred 
Italian  miles  from  the  coasts  and  islands  belonging  to  her;  but  in 
the  course  of  the  negotiations  which  led  to  the  conclusion  of  the 
treaties  of  1824  with  the  United  States,  and  of  1825  with  Great 
Britain,  Russia  admitted  that  her  jurisdiction  in  the  said  sea  should 
be  restricted  to  the  reach  of  cannon-shot  from  the  shore;  and  it 
appears  that  from  that  time  up  to  the  time  of  the  cession  of  Alaska 
to  the  United  States,  Russia  never  asserted  in  fact  or  exercised  any 
exclusive  jurisdiction  in  Behring  Sea,  or  any  exclusive  rights  in 
the  seal  fisheries  therein,  beyond  the  ordinary  limit  of  territorial 
waters.  *  *  * 
"  (2).  *  *  * 

"  (3)  As  to  the  third  of  the  said  five  points,  as  to  so  much  thereof 
as  requires  us  to  decide  whether  the  body  of  water  now  known  as 
'  Behring  Sea'  was  included  in  the  phrase  '  Pacific  Ocean,'  as  used  in 
the  treaty  of  1825  between  Great  Britain  and  Russia,  we,  the  said 
arbitrators,  do  unanimously  decide  and  determine  that  the  body  of 
water  now  known  as  the  '  Behring  Sea '  was  included  in  the  phrase 
'  Pacific  Ocean,'  as  used  in  the  said  treaty.  And  as  to  so  much  of 
said  third  point  as  requires  us  to  decide  what  rights,  if  any,  in  the 
Behring  Sea  were  held  and  exclusively  exercised  by  Russia  after  the 
said  treaty  of  1825,  we,  *  *  *  a  majority  of  said  arbitrators,  do  de- 
cide and  determine  that  no  exclusive  rights  of  jurisdiction  in  Behring 
Sea,  and  no  exclusive  rights  as  to  the  seal  fisheries  therein,  were  held 
or  exercised  by  Russia  outside  of  the  ordinary  territorial  waters  after 
the  treaty  of  1825.  As  to  the  fourth  of  said  five  points,  we,  the  said 
arbitrators,  do  unanimously  decide  and  determine  that  all  the  rights 
of  Russia  as  to  jurisdiction  ard  as  to  the  seal  fisheries  in  the  Behring 


CHAP.  IV.]  "LA   NINFA."  447 

Sea  east  of  the  water  boundary,  in  the  treaty  between  the  TJnitecl 
States  and  Russia  of  30th  ]\Iarch,  1867,  did  pass  unimpaired  to  the 
United  States  under  the  said  treaty.  As  to  the  fifth  of  said  points 
*  *  *  a  majority  of  the  said  arbitrators  do  decide  and  determine  that 
the  United  States  has  not  any  riglit  of  protection  or  property  in  the 
fur-seals  frequenting  the  islands  of  the  United  States  in  Behring  Sea, 
when  such  seals  are  found  outside  the  ordinary  three-mile  limit." 
27  Am.  Law  Rev.  703. 

By  the  fourteenth  article  of  the  treaty  or  convention  submitting  the 
questions  to  arbitration  it  was  provided  that- 

"The  high  contracting  parties  engage  to  consider  the  result  of  the 
proceedings  of  the  tribunal  of  arbitration  as  a  full,  perfect  and  final 
settlement  of  all  the  questions  referred  to  by  the  arbitrators." 

In  submitting  the  questions  to  the  high  court  of  arbitration,  the 
government  agreed  to  be  bound  by  the  decision  of  the  arbitrators,  and 
has  since  passed  an  act  to  give  effect  to  the  award  rendered  by  the 
tribunal  of  arbitration.  28  Stat.  52.  The  award  should,  therefore, 
be  considered  as  having  finally  settled  the  rights  of  the  United  States 
in  the  waters  of  Alaska  and  of  Behring  Sea,  and  all  questions  con- 
cerning the  rights  of  its  own  citizens  and  subjects  therein,  as  well  as 
of  the  citizens  and  subjects  of  other  countries. 

The  true  interpretation  of  section  1956,  and  of  the  amendment 
thereto,  depends  upon  the  dominion  of  the  United  States  in  the 
waters  of  Behring  Sea, — such  dominion  therein  as  was  "ceded  by 
Russia  to  the  United  States  by  treaty  of  1867."  Tliis  question  has 
been  settled  by  the  award  of  the  arbitrators,  and  this  settlement  must 
be  accepted  "as  final."  It  follows  therefrom  that  the  words  "in  the 
waters  thereof,"  as  used  in  section  1956,  and  the  words  "dominion 
of  the  United  States  in  the  waters  of  Behring  Sea,"  in  the  amend- 
ment thereto,  must  be  construed  to  mean  the  waters  within  three 
miles  from  the  shores  of  Alaska.  On  coming  to  this  conclusion,  this 
court  does  not  decide  the  question  adversely  to  the  political  depart- 
ment of  the  government.  It  is  undoubtedly  true,  as  has  been  decided 
by  the  Supreme  Court,  that  in  pending  controversies  doubtful  ques- 
tions, which  are  undecided,  must  be  met  by  the  political  department 
of  the  government.  "  They  are  beyond  the  sphere  of  judicial  cogni- 
zance," and,  "if  a  wrong  has  been  done,  the  power  of  redress  is  with 
Congress,  not  with  the  judiciary."  The  Cherokee  Tobacco,  11  Wall. 
616-621.  But  in  the  present  case  there  is  no  pending  question  left 
undetermined  for  the  political  department  to  decide.  It  has  been 
settled.  The  award  is  to  be  construed  as  a  treaty  which  has  become 
final.  A  treaty,  when  accepted  and  agreed  to,  becomes  the  supreme 
law  of   the  land.     It   binds  courts  as  much  as  an  act  of   Consress. 


448  NATIONALITY.  [PART   I. 

In  Head  Money  Cases,  112  U.  S.  580-598,  5  Sup.  Ct.  254,  the  court 
said : 

"A  treaty  is  primarily  a  contract  between  independent  nations. 
It  depends  for  tlie  enforcement  of  its  provisions  on  the  interest  and 
honor  of  the  governments  which  are  parties  to  it.  *  *  *  A  treaty, 
then,  is  the  law  of  the  laud,  as  an  act  of  Congress  is,  whenever  its 
provisions  prescribe  a  rule  by  which  the  rights  of  the  private  citizen 
or  subject  may  be  determined.  And  when  such  rights  are  of  a  nature 
to  be  enforced  in  a  court  of  justice,  that  court  resorts  to  the  treaty 
for  a  rule  of  decision  for  the  case  before  it,  as  it  would  to  a  statute." 
Chew  Heong  v.  U.  S.,  112  U.  S.  536,  540,  565,  5  Sup.  Ct.  255;  U.  S. 
V.  liauscher,  119  U.  S.  407-419,  7  Sup.  Ct.  234. 

The  duty  of  courts  is  to  construe  and  give  effect  to  the  latest 
expression  of  the  sovereign  will;  hence  it  follows  that,  whatever  may 
have  been  the  contention  of  the  government  at  the  time  hi  re  Cooper 
was  decided,  it  has  receded  therefrom  since  the  award  was  rendered 
by  an  agreement  to  accept  the  same  "as  ?.  full,  complete,  and  final 
settlement  of  all  questions  referred  to  by  the  arbitrators,"  and  from 
the  further  fact  that  the  government  since  the  rendition  of  the  award 
has  passed  "  an  act  to  give  effect  to  the  award  rendered  by  the  tribunal 
of  arbitration." 

It  is  suggested  in  the  brief  of  the  learned  counsel  for  the  United 
States  that: 

"It  maybe  the  present  policy  of  the  government  to  make  record 
evidence  as  to  the  consistency  of  its  contentions  from  the  beginning 
upon  the  important  question  of  its  rights  to  protect  its  property  and 
seal  fisheries.  *  *  *  It  may  be  that  it  is  the  policy  of  this  govern- 
ment to  punish  its  own  citizens  and  vessels,  and  not  the  citizens  and 
vessels  of  England.  All  these  and  other  considerations  make  the 
question  one  essentially  political,  so  that  courts  would  at  least  hesi- 
tate to  enter  any  field  beyond  that  of  construing  the  statutes  under 
which  this  case  is  presented." 

There  is  nothing  in  the  award  which  denies  jurisdiction  of  the 
United  States  over  her  own  merchant  vessels  on  the  high  seas  at  any 
place  not  w^ithin  the  jurisdiction  of  any  other  sovereignty.  These 
questions  have  no  bearing  as  to  the  interpretation  to  be  given  to  the 
statutes  under  review.  These  statutes,  whatever  their  interpretation 
may  be,  must  be  applied  to  citizens  and  subjects  of  all  nations,  and 
were  not  intended  to  apply  only  to  citizens,  subjects,  and  vessels 
of  America.  By  the  terms  of  the  arbitration,  "the  rights  of  the 
citizens  and  subjects  of  either  country  "  wore  involved  in  the  decision 
of  the  arbitrators,  and  it  necessarily  follows  that  the  citizens  and 
subjects  of  the  United  States  have  the  same  right  to  rely  upon  the 


CHAP.  IV.]  "  LA   NINFA."  449 

award  as  to  their  rights,  under  the  statute,  as  the  citizens  and  sub- 
jects of  England.  There  are  no  provisions  in  the  act  of  April  6, 
1894,  "  to  give  effect  to  the  award  rendered  by  the  tribunal  of  arbi- 
tration," which  indicate  any  policy  upon  the  part  of  this  government 
to  enforce  an}^  rights  against  its  own  citizens,  under  the  statute,  con- 
sistent with  the  contentions  made,  "from  the  beginning  upon  the 
important  questions  of  its  right  to  protect  its  property  and  seal  fish- 
eries." On  the  other  hand,  the  entire  act  clearly  shows  that  it  is  the 
policy  of  the  government  not  to  make  any  such  distinction.  The  act 
was  passed  enacting  certain  rules  relative  to  the  control  of  its  own 
subjects  in  the  exercise  of  the  right  which,  under  the  award  of  the 
arbitrators,  the  two  countries  had  in  common  to  kill  seal  outside  of 
the  three-mile  limit. 

The  decree  of  the  District  Court  is  reversed,  and  the  cause  remanded, 
with  instructions  to  the  District  Court  to  dismiss  the  libel, 

jNIcKenxa,  Circuit  Judge,  dissents.^ 

^  As  to  the  power  or  ratlier  tlie  dut\-  of  the  United  States  Government  to  set  aside 
an  arhitration  award  between  it  and  a  foreign  power,  on  the  ground  tliat  tlie  award 
was  obtained  fraudulently,  see  F/-e//Hiy/»n/.'?e«  v.  A'ey,  1883,  110  U.  S.  63,  70-76;  La 
Abra  Silver  Mining  Co.  v.  U.  S.,  1899,  175  U.  S.  423,  450  et  stq. 

On  tiiis  subject  generally,  see  the  masterly  and  monumental  work  of  John  B. 
Moore  on  International  Arbitrations,  0  vols.,  1898,  in  which  are  set  forth  tlie  specific 
instances  of  arbitration  between  the  United  States  and  foreign  powers,  the  treaties 
relating  to  such  arbitrations,  and  a  detailed  history  of  international  arbitration. 

See,  also,  the  careful  theoretical  presentation  of  the  subject  by  M.  Revon,  L'Arbi- 
trage  International,  1892,  and  for  the  documents  and  liistory  of  the  establishment  of 
the  Permanent  Court  of  Arbitration  at  The  Hague,  see  F.  W.  Holls,  Peace  Conference 
at  Tiie  Hague,  1900. 

The  Permanent  Court  considered,  as  its  first  case,  "  The  Pious  Fund  "  dispute 
between  Me.xico  and  the  United  States.  According  to  the  New  York  Nation  (Sept. 
18,  1902),  the  facts  of  this  case  are  as  follows:  "  Original!}',  a  private  benefaction,  it 
was  administered  by  the  Jesuit  Missionaries  of  California  from  1697  to  17G7.  After 
the  expulsion  of  the  Jesuits,  it  was  transferred  to  the  Franciscans,  from  whom  the 
new-born  Mexican  Republic  took  it,  guaranteeing,  however,  by  way  of  indemnity, 
the  payment  in  perpetuity  of  six  per  cent  on  the  capital  to  the  church  authorities. 
'Perpetuity'  and  the  payments  stopped  abruptly  with  the  cession  of  California  to  the 
United  States,  and  now  the  church  in  California  sues  the  Mexican  Government  for 
arrears  of  interest  amounting  to  about -Sl.OOO.OOO." 

On  Oct.  14,  1902,  the  tribunal  (according  to  the  New  York  TrUnnu,  Oct.  15,  1902), 
imanimously  held:  "First  —  That  the  claim  of  the  United  States  in  behalf  of  tlie 
Arclibishop  of  San  Francisco  is  governed  by  the  principle  of  res  adjudicaia  in  virtue 
of  the  arbitration  decision  pronounced  by  Sir  Edward  Thornton,  on  Nov.  11,  1875,  and 
amended  by  Sir  Edward  Thornton,  on  Oct.  24,  1876.  Second  — That  in  conformity 
with  this  decision  the  government  of  the  United  States  of  Mexico  should  pay  the  gov- 
ernment of  the  United  States  §1,420,082.67.  *  *  *  This  sum  will  cover  the  total  pay- 
ment of  annuities  due  from  and  unpaid  by  the  government  of  the  Mexican  Republic. 
*  *  *  Third  —  The  government  of  the  United  States  of  Mexico  will  pay  to  the  govern- 
ment of  the  United  States  *  *  *  an  annual  payment  of  .$43,050.99." 

For  the  facts  of  tlie  case  in  detail,  and  the  award  of  Sir  Edward  Thornton,  see 
2  Moore,  Int.  Arb.  1349-1354.  —  Ed.  29 


PART  II. 

INTERNATIONAL  RELATIONS   AS   MODIFIED  BY  WAR. 


CHAPTER  I. 
MEASURES   SHORT   OF  ACTUAL  WAR. 


Section  2-4.  —  Reprisals. 

Marshall,  C.  J.,  in  The  Nereide,  18J5,  9  Cranch,  388,  422:  The 
court  is  decidedly  of  opinion  that  reciprocating  to  the  subjects  of  a 
nation,  or  retaliating  on  them  its  unjust  proceedings  towards  our 
citizens,  is  a  political,  not  a  legal  measure.  It  is  for  the  consider- 
ation of  the  government,  not  of  its  courts.  The  degree  and  the  kind 
of  the  retaliation  depend  entirely  on  considerations  foreign  to  this 
tribunal.  It  may  be  the  policy  of  the  nation  to  avenge  its  wrongs  in 
a  manner  having  no  affinity  to  the  injury  sustained,  or  it  may  be 
its  policy  to  recede  from  its  full  rights  and  not  to  avenge  them  at 
all.  It  is  not  for  its  courts  to  interfere  with  the  proceedings  of  the 
nation  and  to  thwart  its  views.  It  is  not  for  us  to  depart  from  the 
beaten  track  prescribed  for  us,  and  to  tread  the  devious  and  intri- 
cate path  of  politics.  *  *  *  If  it  be  the  will  of  the  government  to 
apply  to  Spain  any  rule  respecting  captures  which  Spain  is  sup- 
posed to  apply  to  us,  the  government  will  manifest  that  will  by  pass- 
ing an  act  for  the  purpose.  Till  such  an  act  be  passed,  the  court 
is  bound  by  the  law  of  nations,  which  is  a  part  of  the  law  of  the 
land.^ 

^  "  So  far  as  tlie  claim  is  made  tliat  the  relators  should  be  held  in  a  spirit  of  comity 
and  reciprocity,  we  can  only  say  that  the  comity  and  reciprocity  to  be  extended  to 
representatives  of  foreign  governments  depends  upon  Congress,  and  is  not  lodged  with- 
in the  judiciary.  See  2  Op.  Atty.-Gen.  378,  citing  The  Nereide,  9  Cranch,  389." 
Pardee,  J.,  in  Re  Aubrey,  1886,  26  Fed.  848,  851.  — Ed. 


452  MEASUKES  SHORT  OF  ACTUAL  WAR.     [PART  II. 


WILLIAM   GRAY,   ADMIXISTRATOE,  r.   THE 
UNITED   STATES. 

The  Coukt  of  Claims,  1886. 

(21  Court  of  Claims,  340.) 

Davis,  J.,  delivered  the  opinion  of  the  co\irt.^ 

The  defendants  contend  that  the  seizures  were  justified,  as  war 
existed  between  this  country  and  France  during  the  period  in  ques- 
tion; and,  as  we  could  have  no  claim  against  France  for  seizure  of 
private  property  in  time  of  war,  the  claimants  could  have  no  result- 
ing claim  against  their  own  government;  that  is,  the  claims,  being 
invalid,  could  not  form  a  subject  of  set-off  as  it  is  urged  these  claims 
did  in  the  second  article  of  the  treaty  of  1800.  It  therefore  becomes 
of  great  importance  to  determine  whether  there  was  a  state  of  war 
between  the  two  countries. 

It  is  urged  that  the  political  and  judicial  departments  of  each 
government  recognized  the  other  as  an  enemy;  that  battles  were 
fought  and  blood  shed  on  the  high  seas;  that  property  was  captured 
by  each  from  the  other  and  condemned  as  prize;  that  diplomatic  and 
consular  intercourse  was  suspended,  and  that  prisoners  had  been 
taken  by  each  government  from  the  other  and  "  held  for  exchange, 
punishment,  or  retaliation,  according  to  the  laws  and  usages  of 
war."  While  these  statements  may  be  in  substance  admitted  and 
constitute  very  strong  evidence  of  the  existence  of  war,  still  they  are 
not  conclusive,  and  the  facts,  even  if  they  existed  to  the  extent 
claimed,  may  not  be  inconsistent  with  a  state  of  reprisals  straining 
the  relations  of  the  states  to  their  utmost  tension,  daily  threatening 
hostilities  of  a  more  serious  nature,  but  still  short  of  that  war  wliich 
abrogates  treaties,  and  after  conclusion  of  which  parties  must,  as 
between  themselves,  begin  international  life  anew. 

The  French  issued  decree  after  decree  against  our  peaceful  com- 
merce, but,  on  the  ground  of  military  necessity  incident  to  the  war 
with  Great  Britain  and  her  allies,  they  refused  to  receive  our  minis- 
ter, but  in  that  refusal,  insolent  though  it  was,  there  is  nothing  to 
show  that  war  was  intended,  and  the  mere  refusal  to  receive  a  minis- 
ter does  not  in  itself  constitute  a  ground  for  hostilities. 

The   Attorn'ey-General,   iSlv.  Lee,   in   August,  1798,   very  strongly 

^  Facts  nre  wholly  omifteil  and  only  so  much  of  the  opinion  is  given  as  relates  to 
the  question  of  reprisals.  —  Ed. 


CHAP.  I.]  GRAY   V.    UNITED    STATES.  453 

sustained  the  defendant's  position,  for  he  wrote  the  Secretary  of 
State  that  there  existed  with  France  "not  only  an  actual  maritime 
war,"  but  "a  maritime  war  authorized  by  both  nations;"  that  conse- 
quently France  was  an  enemy,  to  aid  and  assist  whom  would  be 
treason  on  the  part  of  a  citizen  of  the  United  States;  but  we  cannot 
agree  that  this  extreme  position  was  authorized  by  the  facts  of  the 
law. 

Congress  enacted  the  various  statutes  hereinafter  referred  to  in 
detail,  and  when  one  of  them,  the  act  providing  an  additional  arma- 
ment, was  passed  in  the  House,  Edward  Livingston,  who  opposed  it, 
said : 

"  Let  no  man  flatter  himself  that  the  vote  which  has  been  given  is 
not  a  declaration  of  war.     Gentlemen  know  that  this  is  the  case." 

Those  were  times  of  great  excitement;  between  danger  of  interna- 
tional contest  and  heat  of  internal  partisan  conflict,  statesmen  could 
not  look  at  the  situation  with  the  calmness  possessed  by  their  succes- 
sors, and  those  successors,  with  some  exceptions  to  be  sure,  regarded 
the  relations  between  the  countries  as  not  amounting  to  war. 

The  question  has  been  carefully  examined  by  authorized  and  com- 
petent aficers  of  the  political  department  of  the  government,  and  we 
may  turn  to  their  statements  as  expository  of  the  view  of  that  branch 
upon  the  subject. 

In  1827  Senator  Holmes  reported  that  there  had  been  "a  partial 
war,  but  no  actual,  open  war  would  absolve  us  from  treaty  stipula- 
tions. *  *  *  It  was  never  understood  here  that  this  was  such  a  war 
as  would  annul  a  treaty."  19th  Cong.,  2d  sess..  Senate  Rep.,  Feb.  8, 
1827,  p.  8. 

Mr.  Giles,  reporting  to  the  House  of  Representatives,  as  early  as 
1802,  called  it  a  "partial  state  of  hostility  "  between  the  L'nited  States 
and  France. 

]\[r.  Chambers  reported  to  the  Senate  in  1828  that,  — 

"  The  relations  which  existed  between  the  two  nations  in  the  inter- 
val between  the  passage  of  the  several  acts  of  Congress  before  referred 
to  and  the  convention  of  1800  were  very  peculiar,  but  in  the  opinion 
of  your  committee  cannot  be  considered  as  placing  the  two  nations 
in  the  attitude  of  a  war  which  would  destroy  the  obligations  of 
previously  existing  treaties." 

]\Ir.  Livingston  reported  to  the  Senate  in  1830  that,  — 

"This  was  not  a  case  of  war,  and  the  stipulations  which  reconciled 
the  two  nations  was  not  a  treaty  of  peace;  it  was  a  convention  for 
the  putting  an  end  to  certain  differences.  *  *  *  Nowhere  is  the  slight- 
est expression  on  either  side  that  a  state  of  war  existed,  which  would 
exonerate  either  party  from  the  obligations  of  making  those  indemui- 


454  MEASUKES   SHORT   OF   ACTUAL   WAR.  [PART  II. 

ties  to  the  other.  *  *  *  The  convention  which  was  the  result  of  these 
negotiations  is  not  only  in  its  form  different  from  a  treaty  of  peace, 
but  it  contains  stipulations  which  would  be  disgraceful  to  our  country 
on  the  supposition  that  it  terminated  a  state  of  war.  *  *  *  Neither 
party  considered  then  they  were  in  a  state  of  war."     Rep.  4,  445. 

Mr.  Everett  made  a  statement  to  the  House  of  Representatives  on 
the  21st  February,  1835,  in  which  he  said : 

"  The  extreme  violence  of  the  measures  of  the  French  Government 
and  the  acccumulated  injuries  heaped  upon  our  citizens  would  have 
amply  justified  the  government  of  the  United  States  in  a  recourse  to 
war;  but  peaceful  remedies  and  measures  of  defence  were  preferred; 
(and,  after  referring  to  the  acts  of  Congress,  he  adds) :  These  vigor- 
ous acts  of  defence  and  preparation,  evincing  that,  if  necessary,  the 
United  States  were  determined  to  proceed  still  further  and  go  to  war 
for  the  protection  of  their  citizens,  had  the  happy  effect  of  precluding 
a  resort  to  that  extreme  measure  of  redress." 

Finally,  Mr.  Sumner  considered  the  acts  of  Congress  as  "vigorous 
measures,"  putting  the  country  "in  an  attitude  of  defence;"  and  that 
the  "painful  condition  of  things,  though  naturally  causing  great 
anxiety,  did  not  constitute  war."  38th  Cong.,  1st  sess.,  Rep.  41, 
1864. 

The  judiciary  also  had  occasion  to  consider  the  situation,  and  the 
learned  counsel  for  the  defendants  cites  us  to  the  opinion  of  Mr.  Jus- 
tice Moore,  delivered  in  the  case  of  Bass  v.  Tlnrpj,  4  Dall.  37,  wherein 
the  facts  were  as  follows:  Tingy,  commander  of  the  public  armed  ship 
the  Ganges,  had  libelled  the  American  ship  Eliza,  Bass,  master,  set- 
ting forth  that  she  had  been  taken  on  the  high  seas  by  a  French  priva- 
teer the  31st  March,  1799,  and  retaken  by  him  late  in  the  following 
April,  wherefore  salvage  was  claimed  and  allowed  below.  Upon 
appeal  the  judgment  was  affirmed.  Each  of  the  four  justices  present 
delivered  an  opinion. 

Justice  Moore,  answering  the  contention  that  the  word  "  enemy  " 
could  not  be  applied  to  the  French,  says: 

"How  can  the  character  of  the  parties  engaged  in  hostility  of  war 
be  otherwise  described  than  by  the  denomination  of  enemies  ?  It  is 
for  the  honor  and  dignity  of  both  nations,  therefore,  they  should  be 
called  enemies;  for  it  is  by  that  description  alone  that  either  could 
justify  or  excuse  the  scene  of  bloodshed,  depredation,  and  confisca- 
tion which  has  unhappily  occurred,  and  surely  Congress  could  only 
employ  the  language  of  the  act  of  June  13,  1798,  towards  a  nation 
whom  she  considered  as  an  enemy." 

Justice  Washington  considers  the  very  point  now  in  dispute,  saying 
(p.  40): 


CHAP.  I.]  GKAY   V.   UNITED   STATES.  455 

"  The  decision  of  tlie  question  must  depend  upon  *  *  *  whether  at 
the  time  of  passing  the  act  of  Congress  of  the  2d  of  March,  1799, 
there  subsisted  a  state  of  war  between  two  nations.  It  may,  I  believe, 
be  safely  laid  down  that  every  contention  by  force  between  two  nations, 
in  external  matters,  under  the  authority  of  their  respective  govern- 
ments, is  not  only  war,  but  public  war.  If  it  be  decreed  in  form  it 
is  called  solemn  and  is  of  the  perfect  kind,  because  one  whole  nation 
is  at  war  with  another  whole  nation,  and  all  the  members  of  the  nation 
declaring  war  are  authorized  to  commit  hostilities  against  the  mem- 
bers of  the  other  in  every  place  and  under  every  circumstance.  In 
such  a  war  all  the  members  act  under  a  general  authority,  and  all  the 
rights  and  consequences  of  war  attach  to  their  condition.  But  hostili- 
ties may  subsist  between  two  nations  more  confined  in  its  nature  and 
extent,  being  limited  as  to  places,  persons,  and  things,  and  this  is 
more  properly  termed  imperfect  war,  because  not  solemn,  and  because 
those  who  are  authorized  to  commit  hostilities  act  under  special  au- 
thority and  can  go  no  further  than  to  the  extent  of  their  commission. 
Still,  however,  it  is  public  war,  because  it  is  an  external  contention 
by  force  between  some  of  the  members  of  the  two  nations,  authorized 
by  the  legitimate  powers.  It  is  a  war  between  the  two  nations,  though 
all  the  members  are  not  authorized  to  commit  hostilities  such  as  in 
a  solemn  war,  where  the  government  retains  the  general  power." 

Applying  this  rule  he  held  that  "  an  American  and  French  armed 
vessel,  combating  on  the  high  seas,  were  enemies,"  but  added  that 
France  was  not  styled  "  an  enemy  "  in  the  statutes,  because  the  degree 
of  hostility  meant  to  be  carried  on  was  sufficiently  described  without 
declaring  war,  or  declaring  that  we  were  at  war.  Such  a  declaration 
by  Congress  might  have  constituted  a  perfect  state  of  war  which  was 
not  intended  by  the  government. 

Justice  Chase,  who  had  tried  the  case  below,  said : 

"  It  is  a  limited,  partial  war.  Congress  has  not  declared  war  in 
general  terms,  but  Congress  has  authorized  hostilities  on  the  high 
seas  by  certain  persons  in  certain  cases.  There  is  no  authority  given 
to  commit  hostilities  on  land,  to  capture  unarmed  French  vessels,  nor 
even  to  capture  armed  Freuch  vessels  in  a  French  port,  and  the 
authority  is  not  given  indiscriminately  to  every  citiz(;n  of  America 
against  every  citizen  of  France,  but  only  to  citizens  appointed  by 
commissions  or  exposed  to  immediate  outrage  and  violence.  *  *  *  If 
Congress  had  chosen  to  declare  a  general  war,  France  would  have  been 
a  general  enemy;  having  chosen  to  wage  a  partial  war,  France  was 
*  *  *  only  a  partial  enemy." 

Justice  Patterson  concurred,  holding  that  the  United  States  and 
France  were  "in  a  qualified  state  of  hostility"  —  war  ''quoad  hoc.^' 


456  MEASURES  SHORT  OP  ACTUAL  WAR.     [PART  IT. 

As  far  as  Congress  tolerated  and  authorized  it,  so  far  might  we  pro- 
ceed in  hostile  operations,  and  the  word  "enemy"  proceeds  the  full 
length  of  this  qualified  war,   and  no  further. 

The  Supreme  Court,  therefore,  held  the  state  of  affairs  now  under 
discussion  to  constitute  partial  warfare,  limited  by  the  acts  of 
Congress. 

The  instructions  of  Ellsworth,  Davie,  and  Murray,  dated  Oct.  22, 
1799,  did  not  recognize  a  state  of  Avar  as  existing,  or  as  having 
existed,  for  they  said  the  conduct  of  France  would  have  justified  an 
immediate  declaration  of  war,  but  the  United  States,  desirous  of 
maintaining  peace,  contented  themselves  "with  preparations  for 
defence  and  measures  calculated  to  defend  their  commerce."  Doc. 
102,  p.  561.  Yet  all  the  measures  relied  upon  as  evidence  of  existing 
war  had  taken  effect  prior  to  the  date  of  these  instructions.  So  the 
ministers,  in  a  communication  to  the  French  authorities,  said,  as  to 
the  acts  of  Congress,  "which  the  hard  alternative  of  abandoning 
their  commerce  to  ruin  imposed,"  that  "far  from  contemplating  a 
co-operation  with  the  enemies  of  the  Republic  (they)  did  not  even 
authorize  reprisals  upon  her  merchantmen,  but  were  restricted  simply 
to  the  giving  of  safety  to  their  own,  till  a  moment  should  arrive  when 
their  sufferings  could  be  heard  and  redressed."     Doc.  102,  p.  583. 

France  did  not  consider  that  war  existed,  for  the  minister  said  that 
the  suspension  of  his  functions  was  not  to  be  regarded  as  a  rupture 
between  the  countries,  "but  as  a  mark  of  just  discontent"  (  15  Nov., 
1796,  Foreign  Relations,  Vol.  I.  p.  583),  while  J.  Bonaparte  and  his 
colleagues  termed  it  a  "transient  misunderstanding"  (Doc.  102,  p. 
590),  a  state  of  "misunderstanding"  which  had  existed  "through  the 
acts  of  some  agents  rather  than  by  the  will  of  the  respective  '  govern- 
ments,' "  and  which  had  not  been  a  state  of  war,  at  least  on  the  side 
of  France.     lb.  616. 

The  opinion  of  Congress  at  this  time  is  best  gleaned  from  the  laws 
which  it  passed.  The  important  statute  in  this  connection  is  that  of 
May  28,  1798  (1  Stat.  L.  561),  entitled  "An  Act  more  effectually  to 
protect  the  commerce  and  coasts  of  the  United  States."  Certainly 
there  was  nothing  aggressive  or  warlike  in  this  title. 

The  act  recites  that,  whereas  the  French  armed  vessels  have  com- 
mitted depredations  on  American  commerce  in  violation  of  the  law  of 
nations  and  treaties  between  the  United  States  and  France,  the  Presi- 
dent is  authorized  —  not  to  declare  war,  but  to  direct  naval  com- 
manders to  bring  into  our  ports,  to  be  proceeded  against  according  to 
the  law  of  nations,  any  such  vessels  "which  shall  have  committed,  or 
wliich  shall  be  found  hovering  on  the  coasts  of  the  United  States  for 
the  purpose  of  committing,  depredations  on  the  vessels  belonging  to 


CHAP.  I.]  GRAY   V.   UNITED   STATES.  457 

the  citizens  thereof;  and  also  to  retake  any  ship  or  vessel  of  any  citizen 
or  citizens  of  the  United  States  which  may  have  been  captured  by  any 
such  armed  vessel." 

Tliis  law  contains  no  declaration  or  threat  of  war;  it  is  distinctly 
an  act  to  protect  our  coasts  and  commerce.  It  says  that  our  vessels 
may  arrest  a  vessel  raiding  or  intending  to  raid  upon  that  commerce, 
and  that  such  vessel  shall  not  be  either  held  by  an  executive  authority 
or  confiscated,  but  turned  over  to  the  admiralty  courts  —  recognized 
international  tribunals  —  for  trial,  not  according  to  municipal  statutes, 
as  was  being  done  in  France,  but  according  to  the  law  of  nations. 
Such  a  statute  hardly  seems  necessary,  for  if  it  extended  at  all  the 
police  powers  of  naval  commanders  upon  the  high  seas  it  was  in  the 
very  slightest  degree,  and  it  is  hardly  probable  then  or  now,  with  or 
without  specific  statutory  or  other  authority,  an  American  naval  com- 
mander would  in  fact  allow  a  vessel  rightfully  flying  the  flag  of  the 
United  States  to  be  seized  on  the  high  seas  or  near  our  coasts  by  the 
cruisers  of  another  government.  But  if  the  act  did  enlarge  the  power 
of  such  officers,  and  give  to  them  authority  not  theretofore  possessed, 
it  tied  them  down  to  specific  action  in  regard  to  specified  vessels. 

They  might  seize  armed  vessels  only,  and  only  those  armed  vessels 
which  had  already  committed  depredations,  or  those  which  were  on 
our  coast  for  the  purpose  of  committing  depredations,  and  they  might 
retake  an  American  vessel  captured  by  such  an  armed  vessel.  This 
statute  is  a  fair  illustration  of  the  class  of  laws  enacted  at  this  time; 
they  directed  suspension  of  commercial  relations  until  the  end  of  the 
next  session  of  Congress,  not  indefinitely  (June  13,  1798,  ib.  §  4,  p. 
566) ;  they  gave  power  to  the  President  to  apprehend  the  subjects  of 
hostile  nations  whenever  he  should  make  "public  proclamations"  of 
war  (July  6,  1798,  ib.  577),  and  no  such  proclamation  was  made; 
they  gave  him  authority  to  instruct  our  armed  vessels  to  seize  French 
"armed,"  not  merchant,  vessels  (July  9,  1798,  ib.  578),  together  with 
contingent  authority  to  augment  the  army  in  case  war  should  break 
out  or  in  case  of  imminent  danger  of  invasion.  March  2,  1799, 
ib.  525.  Within  a  few  months  after  this  last  act  of  Congress  the 
Ellsworth  mission  was  on  its  way  to  France  to  begin  the  negotiations 
which  resulted  in  the  treaty  of  1800,  and  even  the  act  abrogating  the 
treaties  of  1778  does  not  speak  of  war  as  existing,  but  of  "the  systems 
of  predatory  violence  *  *  *  hostile  to  the  rights  of  a  free  and  inde- 
pendent nation."     July  7,   1798,  ib.  578. 

If  war  existed,  why  authorize  our  armed  vessels  to  seize  French 
armed  vessels?  War  itself  gave  that  right,  as  well  as  the  right  to 
seize  merchantmen,  which  the  statutes  did  not  permit.  If  war  existed, 
why  empower  the  President  to  apprehend  foreign  enemies?     "War  it- 


458  MEASURES   SHORT   OF   ACTUAL   WAR.  [PART  II. 

self  placed  that  duty  upon  him  as  a  necessary  and  inherent  incident 
of  military  command.  Why,  if  there  was  war,  should  a  suspension 
of  commercial  intercourse  be  authorized,  for  what  more  complete  sus- 
pension of  that  intercourse  could  there  be  than  the  very  fact  of  war? 
And  why,  if  war  did  exist,  should  the  President,  so  late  as  March, 
1799,  be  empowered  to  increase  the  army  upon  one  of  two  conditions, 
viz.,  that  war  should  break  out  or  invasion  be  imminent,  that  is,  if  war 
should  break  out  in  the  future  or  invasion  become  imminent  in  the 
future? 

Upon  these  acts  of  Congress  alone  it  seems  difficult  to  found  a  state 
of  war  up  to  March,  1799,  while  in  February,  1800,  we  find  a  statute 
suspending  enlistments,  unless,  during  the  recess  of  Congress,  "war 
should  break  out  with  France."  This  is  proof  positive  that  Congress 
did  not  then  consider  war  as  existing,  and  in  fact  Ellsworth,  Davie, 
and  Murray  were  at  the  time  hard  at  work  in  Paris.  In  May  follow- 
ing the  President  was  instructed  to  suspend  action  under  the  act  pro- 
viding for  military  organization,  although  the  treaty  was  not  concluded 
until  the  following  September. 

This  legislatfon  shows  that  war  was  imminent;  that  protection  of 
our  commerce  was  ordered,  but  distinctly  shows  that,  in  the  opinion  of 
the  legislature,  war  did  not  in  fact  exist. 

Wheaton  draws  a  distinction  between  two  classes  of  war,  saying: 

"  A  perfect  war  is  where  one  whole  nation  is  at  war  with  another 
nation,  and  all  the  members  of  both  nations  are  authorized  to  commit 
hostilities  against  all  the  members  of  the  other,  in  every  case,  and 
under  every  circumstance  permitted  by  the  general  laws  of  war.  An 
imperfect  war  is  limited  as  to  places,  persons,  and  things  (to  which 
the  editor  adds)  :  Such  were  the  limited  hostilities  authorized  by  the 
United  States  against  France  in  1798."     Lawrence's  Wheaton,  518. 

There  was  no  declaration  of  war;  the  tribunals  of  each  country 
were  open  to  the  other  —  an  impossibility  were  war  in  progress;  dip- 
lomatic and  commercial  intercourse  were  admittedly  suspended;  but 
during  many  years  there  was  no  intercourse  between  England  and 
Mexico,  which  were  not  at  war;  there  was  retaliation  and  reprisal, 
but  such  retaliations  and  reprisals  have  often  occurred  between  nations 
at  peace;  there  was  a  near  approach  to  war,  but  at  no  time  was  one  of 
the  nations  turned  into  an  enemy  of  the  other  in  such  manner  that 
every  citizen  of  one  became  the  enemy  of  every  citizen  of  the  other; 
finally,  there  was  not  that  kind  of  war  which  abrogated  treaties  and 
wiped  out,  at  least  temporarily,  all  pending  rights  and  contracts, 
individual  and  national. 

In  cases  like  this  "the  judicial  is  bound  to  follow  the  action  of 
the  political  department  of  the  government,  and  is  concluded  by  it " 


CHAP.  I.]  GRAY  V.    UNITED   STATES.  459 

(PhllUps  V.  Ph'iUq?s,  92  U.  S.  R.  130);  and  we  do  not  find  an  act  of 
Congress  or  of  the  executive  between  the  years  1793  and  1801  which 
recognizes  an  existing  state  of  solemn  war,  although  we  find  statutory 
provisions  authorizing  a  certain  course  "  in  the  event  of  a  declaration 
of  war,"  or  "whenever  there  shall  be  declared  war,"  or  during  the 
existing  "differences."  One  act  provides  for  the  increase  of  the  army 
"in  case  war  shall  break  out,"  while  another  restrains  this  increase 
"unless  war  shall  break  out."  1  Stat.  L.  558,  577,  725,  750;  see, 
also,  acts  of  Feb.  10,  1800,  and  i\Iay  14,  1800. 

We  have  already  referred  to  the  instructions  of  the  executive,  which 
show  that  branch  of  the  government  in  thorough  accord  with  the 
legislature  on  this  subject,  and  the  negotiations  of  our  representatives 
hereinafter  referred  to  were  marked  by  the  same  views,  while  the 
treaty  itself  —  a  treaty  of  amity  and  commerce  of  limited  duration  — 
is  strong  proof  that  what  were  called  "differences"  did  not  amount  to 
war.  We  are,  therefore,  of  the  opinion  that  no  such  war  existed  as 
operated  to  abrogate  treaties,  to  suspend  private  rights,  or  to  authorize 
indiscriminate  seizures  and  condemnations;  that,  in  short,  there  was 
no  public  general  war,  but  limited  war,  in  its  nature  similar  to  a  pro- 
longed series  of  reprisals.-' 

1  The  Court  of  Claims  reconsidered  tliis  question  in  Hooper,  Adm'r,  v.  U.  S.,  1887, 
22  Ct.  CI.  408,  456,  with  tiie  following  result : 

"  Acts  of  retaliation  are  admitted  to  be  justifiable  under  certain  conditions.  They 
may  exist  when  the  two  nations  are  otherwise  at  peace,  but  they  are  in  their  nature 
acts  of  warfare.  They  depart  from  the  field  of  negotiation  into  that  of  force,  and,  as  is 
war,  are  justified  by  a  successful  result.  To  term  the  decrees  of  France  and  the  acts  of 
their  privateers  under  them  '  acts  of  reprisal,'  does  not  alter  the  facts  or  the  legal  posi- 
tion. That  position  has  been  defined  by  the  Supreme  Court  of  the  United  States  as 
limited,  p.artial  war.  We,  following  the  path  indicated  by  that  tribunal,  have  defined 
it  as  '  limited  war  in  its  nature  similar  to  a  prolonged  series  of  reprisals.'  " 

"  Acts  of  retorsion  are  not  acts  of  war ;  they  are  pacific.  When  resorted  to  between 
independent  states,  they  are  intended  to  prevent  the  necessity  of  resorting  to  war. 
Nor  can  the  passing  of  such  an  act  be  considered  a  granting  of  letters  of  marque  and 
7-eprisal.  Letters  of  marque  and  reprisal  are  a  commission  to  attack  the  subjects  of  a 
foreign  state  on  the  high  seas  beyond  the  limits  of  the  state,  seize  their  property,  and 
put  it  in  sequestration.  It  is  a  hostile  act  of  aggression.  Martens,  Law  of  Nations, 
270  ;  1  Black.  Com.  258.  These  terms  were  perfectly  understood  by  theframers  of  our 
Constitution,  and  they  are  used  in  the  sense  in  which  they  are  ordinarily  understood  by 
enlightened  jurists."  Wood,  ai-guenclo  in  Gibbons  v.  Livingston,  1822,  G  N.  J.  L.  236,  255. 

"  Letters  of  marque  and  reprisal  may  theoretically  issue  in  time  of  peace  (articles 
of  Confederation  signed  1778,«art.  9),  as  they  form  a  '  mode  of  redress  for  some 
specific  injury  which  is  considered  to  be  compatible  with  a  state  of  peace  and  per- 
mitted by  the  law  of  nations.'  Kent,  Vol.  I.  p.  61.  The  commission  authorizes  '  the 
seizure  of  the  property  of  the  subjects  as  well  as  of  the  sovereign  of  the  offending  nation 
and  to  bring  it  in  to  be  detained  as  a  pledge,  or  disposed  of  under  judicial  sanction  in  like 
manner  as  if  it  were  a  process  of  distress  under  national  authority  for  some  debt  or  duty 
withheld.'    Ibid.     Speaking  very  technically,  a  letter  of  marque  is  merely  a  perroissioa 


460  MEASURES  SHORT  OF  ACTUAL  WAR.     [PART  II. 


Section  25.  —  Hostile  E:\tBAKGO. 


THE   "BOEDES   LUST." 
High  Court  of  Admiralty,  1803. 

(5  C.  Robinson,  245  ) 

This  was  the  case  of  a  Dutch  ship  on  a  voyage  from  Demerara  to 
Batavia,  embargoed  at  the  Cape  of  Good  Hope  by  an  English  scjuadron 
before  the  actual  declaration  of  war  against  Holland  in  1803,  and 
afterwards  condemned  as  enemy's  property.     An  extract  follows  from 

to  pass  tlie  frontier,  while  a  letter  of  reprisal  authorizes  a  '  taking  in  return,'  a  taking 
by  way  of  retaliation,  a  captio  rei  unius  in  alterius  safisfactionem.  Tiie  colloquial  use 
together  of  the  two  names,  letter  of  marque  and  letter  of  reprisal,  leads  sometimes  to 
misunderstanding  as  to  the  differing  effect  of  eacli,  one  being  simply  an  authority  to 
depart,  the  other  an  authority  to  seize  property  in  compensation  for  an  injury  com- 
mitted."    Davis,  J.,  in  Hooper,  Adm'r,  v.  C^.  S.,  1807,  22  Ct.  CI.  408,  429. 

"  Reprisals  may  be  granted  for  injuries  to  private  citizens  as  well  as  to  the  State, 
and  when  done  by  foreign  individuals  as  well  as  when  by  public  authority.  The 
granting  of  letters  of  reprisal  (not  of  marque  and  reprisal)  to  citizens  injured  by 
private  hands,  to  remunerate  themselves  by  reprisals  on  private  property  of  any 
citizens  of  the  nation  of  the  wrongdoer,  has  been  reprobated  by  the  best  modern 
writers,  and  discountenanced  by  the  practice  of  nations.  It  entails  all  the  responsibili- 
ties of  national  acts,  with  none  of  their  political  or  moral  securities.  Stephen's 
Blackstone,  ii.  516.  Pliillimore,  ill.  22.  Woolsey,  §  114.  Halleck,  298,  §  12.  Espe- 
cially is  it  true,  that,  for  injuries  done  directly  to  the  state,  letters  of  general  reprisal 
are  not  now  issued  to  private  persons  in  time  of  peace.  Tiie  issuing  of  such  letters 
would  now  be  considered  an  act  of  war.  Kent,  i.  61.  Halleck,  299.  Pliillimore, 
iii.  24-36,  contains  a  summary  of  the  chief  modern  instances  of  general  reprisals. 

"  The  right  of  making  reprisals  is  not  limited  to  property,  but  extends  to  persons. 
Still,  the  practice  of  modern  times  discountenances  the  arrest  and  detention  of  innocent 
persons,  strictly  in  the  way  of  reprisal.     Halleck,  301,  §  16.     Fhillimore,  iii.  23. 

"  By  the  later  usage  of  speech,  the  term  "  letter  of  marque  "  seems  to  be  confined  to 
tlie  authorization  to  private  armed  trading  vessels  to  make  captures  of  property  of  the 
enemy  in  war.  If  there  is  no  declared  or  recognized  status  of  war,  and  the  government, 
for  a  public  purpose,  desires  to  seize  property,  in  the  way  of  security  or  warning  or 
specific  retaliation,  such  authorization  to  such  vessels  would  be  called  'letters  of 
reprisal,'  or  'letters  of  marque  and  reprisal.'  If,  in  time  of  war,  the  private  vessel 
receiving  the  authorization  is  fitted  out  and  employed  solely  as  a  cruiser,  she  is  called 
a  '  privateer.' 

"  It  is  agreed  that  reprisals  for  private  wrongs  should  never  be  resorted  to  by  a 
government  until  all  reasonable  appeals  to  the  government  of  the  wrongdoer  have 
been  exhausted.  The  course  of  the  British  Government  in  the  case  of  Pacifico,  in 
making  reprisals  against  Greece,  has  been  condenmed,  not  only  because  the  prehmi- 
nary  methods  iiad  not  been  exhausted,  but  because  of  the  extortionate  character  of  the 


CHAP.  I.]  THE   ''BOEDES   LUST."  461 

the  judgment  of  Sir  W.  Scott:  —  This  was  the  state  of  the  first  seizure. 
It  was  at  first  equivocal ;  and  if  the  matter  in  dispute  had  terminated 

demand  made  against  a  power  incapable  of  resistance.  PlilUimore,  iii.  29-33. 
Halleck,  298,  §  11. 

"  Tlie  remedj'  of  retorsion,  wliere  tliere  is  no  recognized  war,  is  distinguished  from 
strict  reprisals.  It  is  the  application  of  the  lex  talionis  to  nations,  and  is  confined  to 
cases  of  the  violation  of  mere  comity,  or  of  the  imperfect  obligations.  It  is  not  proper 
to  resort  to  specific  retaliation  for  cases  of  serious  injury  and  injustice.  The  tendency 
of  modern  times  is  to  put  everything  which  may  result  in  public  international  contro- 
versy directly  into  the  hands  of  the  government,  and  to  confine  all  acts  of  force  to 
public  military  officers,  and  to  simplif_v  these  acts  of  force  into  acts  of  war,  either 
.special  and  preliminary,  or  general.  Woolsey,  §  114.  Halleck,  296,  §  10.  Kent,  i.93, 
94.     Manning,  105.     Kliiber,  §  234.     Heffter,  §§  110,  111.     Phillimore,  iii.  8. 

"By  treaties  and  the  practice  of  nations,  the  making  of  reprisals  is  now  confined  to 
the  seizure  of  commercial  property  on  the  high  seas,  by  public  cruisers,  or  private 
cruisers  specially  authorized  thereto.  Heffter,  §  110."  Dana's  Wheaton,  note 
No.  151. 

And  for  instances  in  which  the  United  States  has  acted  by  way  of  reprisal,  see 
Lawrence's  Wheaton,  p.  507,  note  108. 

In  considering  the  admissibility  of  reprisals,  Attorney-General  Randolph  says:  "I 
appeal  to  the  British  reasoning  on  the  Silesia  loan  [1752]  as  supporting  this  senti- 
ment, in  the  following  passages:  'The  law  of  nations,  founded  upon  justice,  equitj-, 
convenience,  and  the  reason  of  tlie  thing,  and  confirmed  b^'  long  usage,  do  not  allow  of 
reprisals,  except  in  cases  of  violent  injuries  directed  and  supported  b\'  the  State,  and 
justice  absolutely  denied,  in  re  minime  dithid,  by  all  tribunals,  and  afterward  by  the 
prince.'  Where  the  judges  are  left  free,  and  give  sentence  according  to  their  con- 
science, though  it  should  be  erroneous,  that  would  be  no  ground  for  reprisals.  Upon 
doubtful  questions,  different  men  think  and  judge  different!}' ;  and  all  a  friend  can 
desire  is,  that  justice  sliould  be  as  impartially  administered  to  him  as  it  is  to  the 
subjects  of  that  prince  in  whose  courts  the  matter  is  tried.  Under  such  circumstances 
a  citizen  must  acquiesce."     1  Op.  Atty-Gen.  1793. 

For  the  facts  of  the  Silesian  Loan  Case,  the  importance  of  which  rests  more  upon 
the  able  exposition  of  the  law  of  maritime  capture  than  upon  the  question  of  reprisals, 
see  the  long  account  in  2  Martens,  Causes  Ce'lebres,  97,  or  the  brief  note  in  Hall,  Int. 
Law,  454. 

In  the  case  of  Don  Pacijico,  1850,  frequently  cited  as  an  instance  of  reprisals,  the 
facts  were  briefly  :  Pacifico  was  by  race  a  Jew,  by  birth  a  British  subject,  residing  at 
Athens,  Greece.  It  was  customary  at  Athens  to  burn  "  Judas  Iscariot  "  in  effigy  at 
Easter.  This  the  authorities,  in  1847,  attempted  to  prevent,  owing  to  the  presence  of 
Mr.  Charles  de  Rothscliild  in  Athens.  Tlie  mob  resented  the  action  of  the  authorities 
and  vented  its  disappointment  on  Don  Pacifico.  His  house  was  attacked  and  plundered. 
He  generously  estimated  his  loss  at  £2(5,000,  and  it  seems  lodged  a  complaint  with  the 
Greek  Government,  wliich  however,  took  no  action.  Feeling  that  a  Jew  would  have 
little  or  no  chance  of  justice  in  tlie  Greek  courts,  Pacifico  appealed  to  the  British 
Government  which  interfered  and  demanded  compensation  for  the  injuries  done  to  a 
British  subject.  On  the  failure  of  the  Greek  Government  to  meet  the  demand,  the 
British  admiral  laid  an  embargo  on  all  Greek  merchant  vessels  in  Greek  ports  nnd 
captured  and  detained  sucii  as  were  found  upon  the  sea.  Pacifico's  claim  was  ulti- 
mately laid  before  certain  commissioners  who  assessed  his  damages  at  £150. 

Don  Pacifico  has  usually  been  represented  as  an  adventurer  wlio  had  little  claim 
upon  the  sympathy  of  his  fellow-men;   and  England  has   generally  been   severely 


462  MEASURES   SHORT   OF   ACTUAL   WAR.  [PART  II. 

in  reconciliation,  the  seizure  would  have  been  converted  into  a  mere 
civil  embargo.     That  would  have  been  the  retroactive  effect  of  that 

criticised  for  supporting  his  claim.  Yet  if  he  was  a  British  subject,  lie  had  a  right  to 
be  protected  as  sucli.  He  was  born  in  British  territory,  Gibraltar,  and  his  fatlier  waa 
born  in  London.  His  letters  relating  to  this  affair  are  dignified,  and  show  much 
ability.  His  chief  crime  would  seem  to  have  been  that  of  being  a  Jew.  Tiie  argument 
that  Pacifico  ought  to  have  resorted  to  the  ordinary  courts  of  Greece  to  obtain  his 
indemnity  is  quite  untenable.  Wiiat  chance  of  success  would  he  have  had  in  a  suit 
against  a  mob  of  several  hundred  persons,  to  him  unknown,  and  with  public  opinion 
against  him  ?  Indeed  he  brought  the  matter  to  the  notice  of  the  judiciary  department 
of  the  government ;  and  it  was  then  the  duty  of  the  government  to  take  further  pro- 
ceedings. The  fact  would  seem  to  be  that  the  whole  trouble  lay  in  the  weak  and 
vacillating  policy  of  the  Greek  Government,  which  could  easily  have  avoided  all 
trouble  by  simply  doing  justice  to  M.  Pacifico  and  the  other  claimants.  Whetiier  the 
British  Government  was  justified  in  resorting  to  such  extreme  measures  may  be 
questioned  ;  but  that  some  action  was  called  for  there  can  be  little  doubt. 

See  further  the  case  of  Van  Brokelen,  1888,  2  Moore  Intr.  Arb.  1807-1853  in  which 
the  United  States  intervened  in  behalf  of  Van  Brokelen  on  the  ground  that  the 
Haytian  courts  unduly  discriminated  against  him ;  The  Costa  Rica  Packet,  1897, 
5  Moore,  id.  4948-4954,  in  which  Great  Britain  intervened  in  behalf  of  one  Carpenter 
against  Holland,  on  the  ground  that  no  real  cause  was  shown  for  his  arrest,  and  that 
the  treatment  to  which  he  was  subjected  in  prison  appeared  "to  be  unjustifiable  in 
view  of  his  being  the  subject  of  a  civilized  state,"  per  F.  de  Martens,  arbiter. 

The  following  judicious  passage  from  the  judgment  of  Drake,  C.  J.,  in  Habhell  et 
al.  V.  U.  S.,  1879,  15  Ct.  CI.  546,  G08,  throws  light  on  this  subject:  "A  nation  is  not 
ordinarily  esteemed  to  be  liable  internationally  for  injury  done  to  the  property  of 
foreigners  within  its  jurisdiction.  If  Cliinese  property  is  destroyed  in  California,  or  a 
British  vessel  pillaged  by  wreckers  in  Alaska,  international  responsibility  in  damages 
does  not  necessarily  follow.  By  the  comity  of  nations  it  is  assumed  that  the  civil 
power  acts  in  good  faith  ;  that  its  laws  in  their  ordinary  operation  afford  requisite 
protection ;  and  if  that  protection  fails  its  courts  furnish  tlie  means  to  procure  com- 
pensation and  to  punish  the  wrongdoer.  A  foreigner  who  resides  within  a  country 
is  only  entitled  to  enjoy  the  same  protection  and  the  same  indemnity  which  are 
accorded  to  the  citizen  or  subjects.  Mr.  Webster  to  Mr.  Calderon,  Nov.  13,  1851, 
When  the  courts  of  the  country  are  so  bad  or  so  corrupt  as  to  excuse  resorting  to 
them;  or  when  all  redress  through  them  has  failed;  or  when  a  despotism  affords  no 
protection  to  natives;  or  when  the  injured  nation  has  determined  to  question  the  good 
faith  of  the  other  power,  a  case  arises  for  an  international  reclamation  for  such  a  cause." 

The  bombardment  of  Grey  town,  1854,  is  an  American  precedent.  "  Grey  town  was 
a  port  on  the  Mosquito  coast,  in  which  some  United  States  citizens  resided.  These 
citizens,  and  others  interested  with  them  in  business,  were  subjected  to  gross  indigni- 
ties and  injuries  by  the  local  authorities,  who  were  British,  but  who  professed  to  act 
under  autliority  from  the  king  or  chief  of  tiie  Mosquito  Islands.  The  parties  injured 
accordingly  appealed  to  the  commander  of  the  United  States  sloop  of-war  Ci/ane,  then 
lying  near  that  port,  for  protection.  To  punish  the  authorities  for  their  action,  he 
bombarded  the  town.  For  this  act  he  was  denounced  by  the  British  residents,  who 
claimed  tliat  the  British  Government  had  a  protectorate  over  that  region.  His  action 
was  sustained  by  the  government  of  the  United  States,  the  ground  being  the  necessity, 
of  punishing  in  this  way  a  great  wrong  to  citizens  of  the  United  States,  and  preventing 
its  continuance."     1  Wharton's  Digest,  p.  229,  and  II.  p.  595. 

A  favorite  form  of  reprisal  in  coercing  weaker  states  has  been  by  what  are  called 


CHAP.  I.]  THE    "  BOEDES   LUST."  463 

course  of  circumstances.  On  the  contrary,  if  the  transactions  end  in 
hostility,  the  retroactive  effect  is  directly  the  other  way.  It  impresses 
the  direct  hostile  character  upon  the  original  seizure.  It  is  declared 
to  be  no  embargo,  it  is  no  longer  an  equivocal  act,  subject  to  two 
interpretations;  there  is  a  declaration  of  the  animus,  by  which  it  was 
done,  that  it  was  done  hostili  animo  and  is  to  be  considered  as  an 
hostile  measure  ah  initio.  The  proi:)erty  taken  is  liable  to  be  used  as 
the  property  of  persons,  trespassers  ah  initio,  and  guilty  of  injuries, 
which  they  have  refused  to  redeem  by  any  amicable  alteration  of  their 
measures.  This  is  the  necessary  course,  if  no  particular  compact 
intervenes  for  the  restitution  of  such  property  taken  before  a  formal 
declaration  of  hostilities.  No  such  convention  is  set  up  on  either 
side,  and  the  state,  by  directing  proceedings  against  this  property  for 
condemnation,  has  signified  a  contrary  intention.  Accordingly  the 
general  mass  of  Dutch  property  has  been  condemned  on  this  retroac- 
tive effect;  and  this  property  stands  upon  the  same  footing.^ 

"pacific  blockades:"  thus,  in  1827,  "the  coasts  of  Greece  were  blockaded  by  the 
English,  French,  and  Russian  squadrons,  while  the  three  powers  professed  to  be  at 
peace  with  Turkey." 

"The  Tagus  was  blockaded  by  France  in  1831,  New  Granada  by  England  in  1861, 
Mexico  by  France,  in  1838,  and  La  Plata  from  1888  to  1840  by  France,  and  from  1845 
to  1848  by  France  and  England."     Hall's  Int.  Law,  386. 

In  like  manner,  witliout  a  declaration  of  war,  France  blockaded  the  Island  of 
Formosa,  in  1884,  and  in  1893,  the  coast  of  Siam.  In  1886  Greece  was  blockaded  by 
the  fleets  of  nearly  all  the  great  European  powers,  and  in  1897  Crete  was  "  pacifically  " 
blockaded  by  the  use  of  cannon. 

Retorsion,  as  in  the  case  of  differential  import  duties,  is  a  matter  of  municipal  law 
and  municipal  policy,  and  though  unfriendly  in  its  nature,  it  is  certainly  not  hostile. 
The  case  is  diflferent  with  reprisals  ;  tiiey  are  an  appeal  from  reason  to  force.  A 
pacific  blockade  is  pacific  in  name  and  in  fact  only  so  far  as  it  is  an  effort  by  the 
display  of  organized  force  to  preserve  peace.  It  is,  however,  recognized  in  interna- 
tional law,  provided  that  the  interests  of  neutrals  are  not  affected.  See  Hall's  Int. 
Law,  381-390,  and  the  singularly  felicitous  treatment  of  the  subject  of  pacific 
blockades,  in  Holland's  Studies  in  Int.  Law,  1898,  pp.  130-150.  —  Ed. 

1  The  object  of  a  hostile  embargo  may  be  by  way  of  reprisal  to  obtain  satisfaction 
for  an  alleged  injury  ;  or,  it  may  be,  in  the  expectation  of  the  outbreak  of  war,  to  get 
possession  of  property  wliich  will  presumably  be  hostile,  for  the  purpose  of  confiscating 
it  later  —  after  tiie  actual  outbreak  of  war.  Although  the  government  might  restore 
such  property  at  the  breaking  out  of  war,  it  has  not  been  the  practice  to  do  so  ;  and 
hence,  as  Dana  says,  embargo  "  refers  itself  directly  to  the  question  of  the  right,  on 
breaking  out  of  war,  to  seize  ships  and  cargoes  found  in  port."  Dana's  Wlieaton, 
p.  372,  note. 

In  the  case  of  Lindo  v.  Rodneij,  1781,  Douglas,  615,  Lord  Mansfield  said  :  "  Siiips  not 
knowing  of  hostilities  come  in  by  mistake  ;  upon  the  declaration  of  war,  or  hostilities, 
all  the  ships  of  the  enemy  are  detained  in  our  ports,  to  be  confiscated  as  the  property 
of  the  enemy,  if  no  reciprocal  agreement  is  made." 

The  earlier  writers  upon  international  law  do  not  mention  embargo,  at  least  in  the 
sense  of  hostile  embargo.   Until  towards  the  end  of  the  last  century,  there  was  really  no 


464  MEASURES   SHORT   OF   ACTUAL   WAR.  [PAKT  U. 

Section  26.  —  War  :    Purpose  and  Declaration. 

u:n^ited  states  v.  the  "active." 

United    States   District  Court,   Territory  of  Mississippi,  1814. 

(■2i  Federal  Cases,  755.) 

In  1S14,  during  the  war  between  Great  Britain  and  the  United 
States,  the  Active  and  its  cargo  belonging  to  the  enemy  was  taken  in 
sight  of  the  fort  at  Mobile  Point  by  troops  stationed  at  that  place 
under  the  command  of  Major  William  Lawrence.     A  libel  was  filed 

distinction  made  between  property  found  on  land  and  that  found  afloat.  In  both  cases 
it  was  liable  to  capture.  At  tlie  time  of  Bjnkershoek  and  of  Vattel,  private  property 
of  the  enemy  was  confiscated,  tliough  some  treaties  had  exempted  it  from  seizure  at 
the  commencement  of  war.  Bynkerslioek,  I.  chapter  II.  Bynkershoek  mentions 
many  cases,  too,  where  it  was  seized  before  the  declaration  of  war.  It  was  left  to  tiie 
English  admiralty  courts  to  formulate  the  practice  into  legal  maxims  by  their  deci- 
sions. As  to  the  retroactive  effect  of  a  declaration  of  war  as  applied  by  the  courts,  it  is 
apparently  a  necessary  invention  of  Sir  William  Scott  to  legalize  a  practice  already  in 
vogue. 

Dr.  Lusliington  said  in  the  Johanna  Emilie,  1854,  Spinks,  14,  "  With  regard  to  an 
enemy's  property  coming  to  any  part  of  the  kingdom,  or  being  found  there,  being  scizable, 
I  confess  I  am  astonished  that  doubt  should  exist  on  the  subject.  I  apprehend  the  law 
lias  been  this,  that  it  is  competent  for  any  person  to  take  possession  of  such  property, 
unless  it  had  any  protection  by  license,  or  by  some  declaration  emanating  by  the 
authority  of  the  Crown,  and  to  assist  the  Crown  to  proceed  against  it  to  adjudication." 

At  the  breaking  out  of  the  Crimean  AVar  in  1854,  merchant  vessels  of  the  enemy 
were  allowed  by  the  belligerents  six  weeks  for  loading  their  cargoes  and  departing. 
And,  f  urtiier,  vessels  of  the  same  character  sailing  from  foreign  ports  prior  to  the  promul- 
gation of  these  orders,  were  allowed  to  enter  the  ports  of  the  enemy  and  disciiarge 
their  cargoes  and  to  depart.  The  initiation  of  tliis  modification  of  the  old  rule  in  this 
war  seems  to  have  been  taken  by  Turkey  in  her  declaration  of  war  against  Russia, 
October  4,  1853.  "The  Sublime  Porte,  however,  does  not  consider  it  just  that, 
agreeable  to  ancient  usage,  an  embargo  should  be  laid  on  Russian  merchant  vessels. 
Accordingly  they  will  be  warned  to  proceed  within  a  period  to  be  fixed  hereafter  to 
the  Black  Sea  or  to  the  Mediterranean,  as  they  choose."  See  1  Halleck,  533;  Hertslet, 
II.  1170. 

In  the  recent  war  with  Spain,  the  President's  proclamation  of  April  26,  1898,  pro- 
vided as  follows:  "4.  Spanish  merchant  vessels  in  any  ports  or  places  within  the 
United  States  shall  be  allowed  until  May  21st,  18'J8,  inclusive,  for  loading  their  car- 
goes and  departing  from  such  ports  and  places  ;  and  such  Spanish  merchant  vessels, 
if  met  at  sea  by  any  United  States  ship,  siiall  be  permitted  to  continue  their  voyage,  if, 
upon  examination  of  their  papers,  it  shall  appear  that  their  cargoes  were  taken  on 
board  before  the  expiration  of  the  above  term  :  Provided,  that  notliing  herein  con- 
tained shall  apply  to  Spanish  vessels  having  on  board  any  oflScer  in  tiie  military  or 


CHAP.  I.]  UNITED   STATES    V.   THE   "  ACTIVE."  465 

in  the  name  of  the  United  States  against  the  schooner  Active  and 
cargo  to  procure  their  condemnation  as  prize  of  war,  to  which  a  plea 
was  filed  on  behalf  of  tlie  captors  alleging  that  the  "  schooner  Active 
and  cargo  were  captured  b}^  William  Lawrence  and  others  on  the  high 
seas,  and  not  in  the  enemy's  forts,  camps,  or  barracks,  and,  therefore, 
by  the  usages  of  the  laws  of  nations  and  the  laws  of  war,  as  enemy's 
property  become  forfeited  to  the  said  private  captors."  The  question 
before  the  court  was :  Are  the  troops  thus  making  a  prize  entitled  by 
law  to  the  benefit  of  it? 

TouLMAN,  J.^  The  most  satisfactory  mode  probably  of  coming 
to  a  conclusion  on  this  subject  will  be  to  have  recourse  to  general 
principles. 

1.  What  is  war?  "It  is  a  contest,"  says  Bynkershoek,  "carried  on 
between  independent  persons  for  the  sake  of  asserting  their  rights." 
W^here  society  does  not  exist  —  where  there  is  no  such  institution  as 
that  which  we  call  government  —  these  individuals,  being  strictly 
independent  persons,  may  carry  on  war  against  each  other.  But 
whenever  men  are  formed  into  a  social  body,  war  cannot  exist  between 
individuals.  The  use  of  force  among  them  is  not  wax,  but  a  trespass, 
cognizable  by  the  municipal  law.  Bynk.  War,  p.  128.  If  war, 
then,  be  the  act  of  the  nation,  whatever  is  done  in  the  prosecution  of 
it,  must  either  expressly  or  implicitly  be  under  the  national  authority. 
Whatever  private  benefits  result  from  it  must  be  from  a  national 
grant.  "War,"  says  Vattel  (page  368),  "is  that  state  in  which  a 
nation  prosecutes  its  right  by  force."  The  right  of  making  war 
belongs  alone  to  the  sovereign  power.  Individuals  cannot  control 
operations  of  war,  nor  commit  any  hostility  (except  in  self-defence), 
without  the  sovereign's  order.  The  generals  (adds  that  writer),  the 
officers,  the  soldiers,  the  partisans,  and  those  who  fit  out  private 
ships  of  war,  having  all  commissions  from  the  sovereign,  make  war 
by  virtue  of  a  particular  order.     And  the  necessity  of  a  particular 

naval  service  of  the  enemy  ;  or  any  coal  (except  sucli  as  may  be  necessary  for  their 
voyage)  or  any  other  article  prohibited  or  contraband  of  war,  or  any  despatcli  of  or  to 
the  Spanish  Government."  10  Richardson's  Messages  and  Papers,  204.  For  a  liberal 
interpretation  extending  the  terms  of  the  proclamation  to  Spanish  vessels  sailing  from 
American  ports  before,  but  captm-ed  after,  the  declaration  of  war,  see  Jlie  Buena 
Ventura,  1899,  175  U.  S.  384. 

The  departure  from  the  old  rule  in  this  case,  coupled  with  tiie  numerous  treaties 
stipulating  for  time  for  the  removal  of  vessels  in  case  of  war,  go  far  towards  creating 
that  change  of  practice  which  ultimately  changes  the  law  of  nations.  Dana's 
Wlieaton,  note  No.  156. 

For  tlie  various  civil  embargo  ai  d  non-intercourse  acts  of  the  United  States,  and 
their  judicial  interpretation,  see  3  Wliarton's  Digest,  §§  319,  320;  16  Am.  &  Eng. 
Ency.  of  Law,  2d  ed.  1139,  notes  2,  3.  —  Ed. 

^  Only  that  part  of  the  opinion  relating  to  general  principles  is  given.  —  Ed. 

30 


466  MEASURES  SHORT  OF  ACTUAL  WAR.      [PART  II. 

order  is  so  thoroughly  established,  that  even  after  a  declaration  of 
war  between  two  nations,  if  the  peasants  themselves  commit  any 
hostilities,  the  enemy,  instead  of  sparing  them,  hangs  them  up  as  so 
many  robbers  or  banditti.  This  is  the  case  with  private  ships  of  war. 
It  is  only  in  virtue  of  a  commission  granted  by  the  sovereign  or  his 
admiralty,  that  they  are  entitled  to  be  treated  like  prisoners  taken  in 
a  formal  war.  Vatt.  Law  Nat.  pp.  365,  366.  If,  then,  on  the  gen- 
eral principles  of  civil  society,  the  whole  operations  of  war  depend 
upon  the  will  and  authority  of  the  government,  surely  the  appropria- 
tion and  distribution  of  the  property  acquired  in  consequence  of  those 
operations  must  equally  be  subject  to  the  control  of  the  government, 
and  depend  on  those  regulations  which  it  may  establish. 

2.   What,  indeed,  is  the  object  of  war? 

Is  it  to  aggrandize  individuals,  or  is  it  to  maintain  the  rights  of  the 
nation?  "The  just  and  lawful  scope  of  every  war,"  observes  Vattel 
(page  280),  "is  to  revenge  or  prevent  injury.  If,  to  accomplish  this 
object,  it  is  expedient  to  encourage  individual  warfare,  by  granting 
all  the  profits  arising  from  it  to  the  parties  engaged,  the  nation  has  a 
right  to  promise  this  encouragement;  but  until  this  encouragement 
be  actually  offered,  it  must  follow  that  everything  which  is  required 
by  individuals,  whether  acting  as  private  persons  or  as  a  part  of  the 
public  force,  must  belong  to  the  nation  under  whose  authority  they 
act." 

4.  What  rights  are  acquired  by  a  state  of  war?  "A  nation,"  says 
Bynkershoek  (page  4),  "who  has  injured  another  is  considered,  with 
everything  that  belongs  to  it,  as  being  confiscated  to  the  nation 
which  receives  the  injury."  The  rights  accruing,  therefore,  are 
national  altogether.  They  are  not  individual  rights.  The  case 
seems  analogous  to  that  of  the  internal  administration  of  justice.  A 
civil  society  —  a  nation  —  has  the  right  of  punishing  those  who  are 
guilty  of  violating  the  public  laws.  Though  the  guilty  be  members 
of  their  own  community,  they  may  forfeit  their  property  or  their 
lives.  But  the  right  of  the  body  politic  does  not  attach  itself  to  the 
individual  members  of  it.  The  nation,  indeed,  might  authorize  indi- 
viduals to  take  the  lives  or  the  property  of  known  offenders;  but, 
without  an  authority  delegated  by  the  nation,  individuals  have  no 
such  right.  A  right  in  private  persons  to  avenge  violations  of  the 
law  does  not  follow  as  a  natural  consequence  from  the  circumstance  of 
their  being  members  of  the  great  political  body.  On  the  contrary, 
the  same  act  which  would  be  retributive  justice  when  emanating  from 
the  sovereign  power  would  become  murder  or  robbery  in  the  individ- 
ual. Why  should  it  be  otherwise,  as  it  regards  our  intercourse  with 
other  nations?     Why  should  a  nation  be  less  jealous  of  its  rights  with 


CHAP.  I.]  UNITED    STATES   V.   THE   "  ACTIVE."  467 

regard  to  hostile  nations  than  with  regard  to  hostile  individuals? 
Why  less  jealous  when  encroached  upon  on  a  large  scale  than  when 
they  are  encroached  upon  on  a  scale  truly  small  and  insignificant? 
And  even  admitting  that  in  the  one  case  the  public  authority  permits 
an  individual  to  execute  the  sentence  of  the  law,  and  in  the  other  to 
attack  and  vanquish  the  public  enemy,  it  will  not  follow  that  in 
either  case  the  property  of  the  enemy  is  to  become  the  property  of 
the  individual  by  whom  the  national  will  is  carried  into  execution. 
This,  it  should  seem,  must  depend  on  express  stipulations  made  in 
behalf  of  the  nation.  Agreeably  to  these  principles,  the  celebrated 
M.  De  Yattel,  after  observiug  that  a  nation  has  the  right  to  deprive 
the  enemy  of  his  possessions  and  goods,  of  everything  that  may  aug- 
ment his  forces  and  enable  hini  to  make  war,  goes  on  to  remark,  that 
booty,  or  the  movable  property  of  the  enemy  taken  in  war,  belongs 
to  that  sovereign  making  war,  no  less  than  his  towns  and  lands:  for 
he  alone  (the  sovereign  authority)  has  such  claims  against  the  enemy 
as  warrant  him  to  seize  on  his  goods,  and  appropriate  them  to  him- 
self. His  soldiers  (he  adds)  are  only  instruments  in  his  hand,  for 
asserting  his  right.  He  maintains  and  forms  them.  Whatever  they 
do  is  in  his  name  and  for  him.  Vatt.  Law  Xat.  335.  These  prin- 
ciples are  equally  applicable  to  every  form  of  government.  It  is  per- 
fectly immaterial  with  whom  the  sovereign  authority  resides.  With 
whomsoever  it  resides,  its  power  is  erected  on  the  doctrine  of  its 
being  the  legitimate  representative  of  the  nation;  and  the  rights  of 
the  nation  are  not  surely  to  be  considered  as  being  less,  under  a 
republican,  than  under  a  monarchical  form  of  government. 

The  nation,  however,  as  I  have  observed  before,  may  give  a  bounty 
to  individual  captors  —  may  relinquish  a  part  of  its  rights  to  those 
who  fight  under  its  banners.  Agreeably  to  this  the  same  writer  goes 
on  to  observe  that  "  the  sovereign  may  grant  to  the  troops  what  share 
of  the  booty  he  pleases.  At  present  most  nations  allow  whatever 
they  can  make  on  certain  occasions,  when  the  general  allows  of  plun- 
dering what  they  find  on  enemies  fallen  in  battle;  the  pillage  of  a 
camp  when  it  has  been  forced  and  sometimes  of  a  town  taken  by 
assault."  The  cases  here  enumerated  seem  to  be  those  where  either 
the  object  was  too  trifling  to  become  a  matter  of  national  attention,  or 
where  the  services  previously  rendered  by  the  troops  call  for  a  degree 
of  vigor  and  exertion  which  would  merit  extraordinary  encourage- 
ment. The  whole,  however,  is  made  to  depend  on  the  will  of  the 
nation  expressed  through  their  commanding  general. 

I  have  been  more  particular  in  stating  the  principles  laid  down  by 
writers  on  the  law  of  nations  (or  the  dictates  of  justice  and  common 
sense,  as  applied  to  national   intercourse),  because  the  attorney  for 


468  MEASURES  SHORT  OE  ACTUAL  WAR.      [PART  II. 

the  claimant,  whilst  acknowledging  that  the  laws  of  the  United  States 
are  silent  on  the  present  case,  places  a  great  reliance  on  the  injunc- 
tions of  national  law.  It  is  contended  that  the  law  of  nations  gives 
the  booty  in  this  case  to  the  captors. 

What,  indeed,  is  the  law  of  nations?  It  is  that  rule  of  conduct 
which  regulates  the  intercourse  of  nations  with  one  another;  or  in  the 
words  of  the  author  last  cited,  "the  law  of  nations  is  the  science  of 
the  law  subsisting  between  nations  or  states,  and  of  the  obligations 
that  flow  from  it."  Vatt.  Law  Nat.  49.  It  is  a  law  for  the  govern- 
ment of  national  communities  as  to  their  mutual  relations,  and  not 
for  the  government  of  individuals  of  those  communities  in  their  rela- 
tion towards  one  another  —  nor  can  it  control  the  conduct  of  nations 
towards  their  own  citizens,  except  in  cases  involving  the  rights  of 
other  nations.  Property  once  transferred  by  capture  must  be  subject 
to  the  laws  of  the  nation  by  which  the  capture  is  made.  The  ques- 
tion whether  it  shall  be  public  or  private  property  must  depend  on  the 
regulations  adopted  by  the  nation  making  the  capture,  and  cannot 
naturally  be  regarded  as  subject  to  the  control  of  a  system  of  laws 
which  has  respect  to  the  laws  and  duties  of  nations  towards  one  an- 
other. What  our  author  states  as  to  the  practice  of  nations  towards 
their  own  citizens,  is  not,  truly  speaking,  a  delineation  of  the  laws  of 
nations.  The  conduct  of  nations  towards  their  own  citizens  must 
depend  on  their  own  municipal  regulations.  It  is  by  the  laws  of 
nations  that  we  must  determine  the  circumstances  under  which  prizes 
may  be  taken,  but  what  is  to  become  of  them  when  taken  under  the 
sanction  of  that  law  cannot  depend  upon  the  law  of  nations,  but  must 
depend  upon  the  will  of  the  nation  by  which  the  capture  is  made. 
Individuals  of  the  capturing  nation  can  have  no  right  independent 
of  the  nation  to  which  they  belong.  It  is  by  a  reliance  upon  the 
authority  of  their  nation,  that  they  shelter  themselves  from  the  charge 
of  robbery  or  piracy.  The  sovereign,  however,  may  distribute  the 
booty  as  he  pleases.  He  may  do  it  b}'  a  general  law,  or  by  special 
regulations,  issued  by  his  generals,  subject  to  the  emergency  of  the 
ease ;  provided  that  the  government  permits  of  such  a  delegation  of 
authority.  Even  the  property  acquired  by  privateers  depends  on 
stipulations  made  with  the  supreme  power  of  the  country  to  Avhich 
they  belong.  "Persons,"  says  Vattel  (page  367),  "fitting  out  ships 
to  cruise  on  the  enemy,  in  recompense  of  their  disbursements  and  risk 
they  run,  acquire  the  property  of  the  capture;  but  they  acquire  it  by 
grants  of  the  sovereign  who  issues  out  commissions  to  them.  The 
sovereign  either  gives  up  to  them  the  whole  capture  or  a  part  —  this 
depends  on  the  contract  between  them."  Vatt.  Law  Nat.  p.  367. 
As  to  those  who  without  any  authority  from  their  sovereign,  commit 


CHAP.  I.]  UNITED   STATES   V.    THE   "  ACTIVE."  469 

depredations  by  sea  or  land,  they  are  regarded  as  pirates  and  plun- 
derers, and  tilings  taken  by  tlieni  do  not  thereby  undergo  a  change  of 
property.     P>ynk.  p.  127. 

Agreeably  to  this  statement  (Lord  Camden  v.  Home,  4  Term  E, 
387),  we  find  that  Sir  William  Scott  granted  a  munition  against  the 
master  and  owner  of  a  privateer  not  commissioned  against  the  Dutch, 
to  bring  in  proceeds  of  a  Dutch  prize.  The  party  appearing  acknowl- 
edged that  he  had  no  commission,  but  prayed  to  be  admitted  as  a  joint 
captor.  The  court  did  not  even  suffer  the  case  to  be  argued,  but 
observed:  "The  person  admits  that  he  had  no  commission.  It  is 
therefore  impossible  for  him  to  contend  for  a  legal  interest  in  joint 
capture.  If  hs  thinks  he  has  any  equitable  claims,  arising  from  any 
service  he  has  performed,  they  may  be  represented  to  the  admiralty. 
The  former  proceedings  (of  condemnation  at  Jamaica)  on  the  part  of 
the  non-commissioned  captor  are  mere  nullities;  and  the  property 
must  be  proceeded  against  as  droits  of  admiralty."  4  C.  Eob.  Adm. 
72.  The  case  of  the  Rebeckah,  which  was  a  question  of  interest  in 
the  capture  of  a  vessel  made  by  naval  officers  from  the  island  of  St. 
INInrcou,  a  naval  station,  used  for  the  temporary  accommodation  of  the 
crews  of  ships  of  war,  gave  occasion  to  remarks  from  Sir  William 
Scott,  very  applicable  to  the  case  now  before  me.  "I  accede,"  says 
he,  "  entirely  to  what  has  been  laid  down,  that  a  capture  at  sea,  made 
by  a  force  upon  land  (which  is  a  case  certainly  jjossible,  though  not 
frequent),  is  considered  generally  as  a  non-commissioned  capture,  and 
inures  to  the  benefit  of  the  lord  high  admiral.  Thus,  if  a  ship  of 
the  enemy  was  compelled  to  strike  by  a  firing  from  the  castle  of 
Dover,  or  other  garrisoned  fortress  upon  land,  that  ship  would  be  a 
droit  of  admiralty,  and  the  garrison  must  be  content  to  take  a  reward 
from  the  bounty  of  the  admiralty,  and  not  a  prize  interest,  under  the 
king's  proclamation.  All  title  to  sea-prize  must  be  derived  from 
commissions  under  the  admiralt}',  which  is  the  great  fountain  of 
maritime  authority;  and  a  military  force  upon  the  land  is  not  in- 
vested with  any  commission  so  derived,  impressing  on  them  a  mari- 
time character,  and  authorizing  them  to  take,  upon  that  element,  for 
their  own  benefit.  I  likewise  think  cases  may  occur  in  which  naval 
persons,  having  a  real  authority  to  take  upon  the  sea  for  their  own 
advantage,  might  yet  entitle  the  admiralty,  and  not  themselves,  by  a 
capture  made  upon  the  sea,  by  the  use  of  a  force  stationed  upon  the 
land.  Suppose  the  crew,  or  part  of  the  crew,  of  a  man-of-war  were 
landed,  and  descried  a  ship  of  the  enemj^  at  sea,  and  that  they  took 
possession  of  any  battery  or  fort  upon  the  shore,  and  by  means 
thereof,  compelled  such  ship  to  strike.  I  have  no  doubt  that  such  a 
capture,  though  made  by  persons  having  naval  commissions,  yet  being 


470  MEASURES    SHORT   OF   ACTUAL   WAR.  [PART  IT, 

made  by  means  of  a  force  upon  the  land,  "n'ould  be  a  droit  of  admi- 
ralty, and  nothing  more."     C.  Rob.  Adm.  227. 

The  only  question,  then,  which  remains  to  be  considered  is,  have 
the  laws  of  the  United  States  given  to  the  military  any  share  in  prizes 
taken  by  troops  so  circumstanced? 

As  to  the  laws  of  the  United  States  respecting  property  captured 
by  the  public  force,  the  most  material  is  the  act  of  the  23d  April, 
1800,  for  the  better  government  of  the  navy.  This  act  gives  to  the 
captors  the  proceeds  of  vessels  and  goods  taken  on  board  of  them 
when  adjudged  good  prize.  But  this  act  is  a  law  expressl}'  for  the 
government  of  the  navy  of  the  United  States ;  and,  indeed,  it  does  not 
appear  to  be  contended  that  it  can  by  any  rule  of  construction  be 
extended  to  the  army.  Private  commissoned  vessels,  in  like  manner, 
deserve  their  right  to  appropriate  to  themselves  the  prizes  they  make, 
from  the  "act  concerning  letters  of  marque,  prizes,  and  prize  goods," 
passed  on  the  26th  day  of  June,  1812.  This  act,  after  stating  the 
conditions  on  which  authority  should  be  given  to  our  vessels  to  cap- 
ture the  vessels  and  property  of  the  enemy,  proceeds  to  vest  the  same, 
when  taken  under  such  authority,  in  the  owners,  officers,  and  crews  of 
the  vessels  by  which  prizes  should  be  made.  11  Laws  (\Yeightman's 
ed.),  p.  240  (2  Stat.  759).  Had  it  been  the  intention  of  the  govern- 
ment that  non-commissioned  vessels  should  be  entitled  to  the  proceeds 
of  prizes  made,  or  that  any  person  in  the  employ  of  the  United  States, 
and  not  belonging  to  the  navy  or  marines,  should  be  entitled  to  the 
benefit  of  all  enemy's  property  taken  by  them,  it  would  surely  have 
been  natural  that  such  intention  should  have  been  expressed  in  these 
or  some  other  legislative  acts.  Moreover,  indeed,  it  does  not  appear 
what  occasion  there  could  be  to  provide  regulations  and  bonds  for  the 
government  and  good  conduct  of  vessels  applying  for  commissions  to 
make  prizes;  if  all  vessels  of  any  description  were  authorized  to  take 
and  to  appropriate  to  their  own  use  the  property  of  the  enemy,  merely 
because,  as  it  hath  been  contended,  the  fortune  of  war  had  thrown  it 
in  their  way. 

In  the  whole  view  of  the  case,  therefore,  now  before  the  court,  it  is 
adjudged  and  decreed,  that  the  plea  be  overruled,  and  dismissed,  with 
costs  in  court  occasioned  by  the  plea,  and  that  the  schooner  Active  and 
cargo  be  condemned  as  good  and  lawful  prize  of  the  United  States. 

Davis,  J.,  in  Dole  v.  Merchants  Mutual  Marine  Ins.  Co.,  1863,  51 
Maine,  465,  470.  That  they  were  liable  to  be  regarded  as  "enemies," 
is  undoubtedly  true.  This  implies  the  existence  of  "war."  But 
every  forcible  contest  between  two  governments,  de  facto  or  dejure, 
is  war.  War  is  an  existing  fact,  and  not  a  legislative  decree.  Con- 
gress  alone   may  have  power  to  "declare"  it  beforehand,  and   thus 


CHAF,  I.]  THE   "  TEUTONIA."  471 

cause  or  commence  it.  But  it  may  be  initiated  b}"  other  nations,  or 
by  traitors;  and  then  it  ej:isfs,  whether  there  is  a  declaration  of  it  or 
not.  It  may  be  prosecuted  without  any  declaration;  or  Congress  may, 
as  in  the  Mexican  war,  declare  its  previous  existence.  In  either  case 
it  is  the  fact  that  makes  '^enemies,'''  and  not  any  legislative  act.^ 


THE    "TEUTONIA." 
Privy  Council,  1870. 

(Law  Reports,  4  Privy  Council,  171.) 

Lord  Justice  Mellish.  "This  is  an  appeal  in  a  cause  instituted 
under  the  6th  section  of  the  Admiralty  Court  Act,  1861,  on  behalf  of 
Messrs.  Duncan,  Fox  &  Co.,  the  consignees  of  a  bill  of  lading  of  the 
cargo  laden  on  board  the  ship  Teutonia,  against  that  ship  and  her 
freight,  and  against  the  owner  of  the  vessel. 

The  Teutonia  was  a  Prussian  brig,  subject  to  the  laws  of  Prussia, 
and  her  master  and  crew  were  subjects  of  the  King  of  Prussia. 

And  by  the  charter-party  referred  to  in  the  bill  of  lading  it  was 
agreed  that,  "after  receiving  on  board  the  said  cargo,  the  said  vessel 
shall  proceed  either  to  Cork,  Cowes,  or  Falmouth,  at  the  option  of 
the  master,  where  he  shall  receive  orders  from  charterer's  agents 
within  three  days  after  his  arrival  to  proceed  to  any  one  safe  port  in 
Great  Britain  or  on  the  Continent  between  Havre  and  Hamburgh, 
both  included,  and  there,  accoi'ding  to  bills  of  lading  and  charter- 
party,  deliver  the  cargo,  the  act  of  God,  the  Queen's  enemies,  fire, 
and  all  and  every  other  risk,  dangers,  and  accidents  of  the  seas, 
rivers,  and  navigation  of  whatever  nature  and  kind  soever  ex- 
cepted, freight  to  be  paid  in  manner  herein  mentioned  on  a  true 
and  right  delivery  of  the  cargo  in  the  port  of  discharge  at  and  after 
the  rate  of  45s.  British  sterling  per  ton." 

The  vessel  arrived  at  Falmouth  on  lOtli  of  July  ;  and  the  master, 
whilst  there,  heard  rumours  that  war  was  probable  between  France 
and  Prussia.  On  the  11th  of  July,  the  master  received  orders  from 
the  consignees  to  discharge  the  cargo  at  Dunkirk ;  and  he  at  once 
set  sail  for  Dunkirk,  and  arrived  at  a  distance  of  about  fourteen 
miles  off  that  port,  at  12  o'clock  at  night  of  the  16th,  which  was  a 
Saturday ;  and  the  master  says  that,  after  lying  to  for  about  two 

1  For  the  twofold  division  of  liostilities  into  "perfect"  and  "imperfect"  w.-ir,  see 
Bas  V.  Tinr]>i,  1800,  4  Dall.  37,  ciled  in  Gray's  Adm.  v.  U.  S.,  1886,  21  Ct.  CI.  340,  §  24, 
ante,  and  Talbot  v.    Seernan,  1801,  1  Cr.  1.  —  Ed. 


472  MEASURES    SHORT    OF   ACTUAL   AVAR.  fPART  TI. 

hours,  a  regular  pilot,  in  official  uniform,  came  on  board ;  that  he 
asked  the  pilot  about  the  war ;  that  the  pilot  told  him  it  had  been 
declared  two  days  ago;  that  he  asked  the  x^ilot  where  he  could 
bring-to  in  safety,  so  that  he  might  ascertain  whether  war  was  act- 
ually declared  or  not ;  that  the  pilot  offered  to  take  him  to  Flushing, 
or  the  Downs,  or  wherever  he  liked.  The  master  elected  to  go  to 
the  Downs;  and  he  anchored  there  on  Sunday  morning,  the  17th,  at 
10  o'clock.  He  says,  that  on  that  day  he  could  obtain  no  advice  or 
information  ;  that  on  the  Monday,  the  18th,  he  was  on  shore  at  Deal, 
and  the  German  consul  told  him  that  war  had  broken  out.  He 
telegraphed  to  the  owner,  who  was  his  father,  and  received  an 
answer,  forbidding  him  to  go  to  Dunkirk  ;  and  on  Tuesday  the  19th 
he  took  the  ship  into  Dover,  as  the  nearest  port. 

On  the  same  19th  of  July,  the  French  declaration  of  war  was 
delivered  to  the  Prussian  Government  at  Berlin,  which  was  known 
the  same  day  by  telegraph  in  England.  On  the  23d  of  Juh%  an 
agent  of  the  plaintiffs  went  to  Dover,  and  required  the  master  to 
proceed  to  Dunkirk,  which  he  refused  to  do.  Afterwards,  on  the  1st 
of  August,  the  i^laintiffs  required  the  master  to  deliver  them  the 
cargo  at  Dover,  which  he  refused  to  do  unless  he  was  paid  his 
freight. 

Under  these  circumstances,  the  plaintiffs  allege  that  the  master 
has  committed  two  breaches  of  contract  or  duty  :  first  in  refusing  to 
proceed  to,  and  deliver  the  cargo  at,  Dunkirk ;  and  secondly,  they 
complain  that,  when  the  performance  of  the  contract  became  impos- 
sible, and  the  contract  was,  as  they  allege,  dissolved  by  the  war,  tlie 
master  was  not  justified  in  refusing  to  deliver  the  cargo  to  the  plaint- 
iffs at  Dover  without  payment  of  freight. 

The  first  question  to  be  considered  is,  whether  the  master  was 
bound  to  have  entered  the  port  of  Dunkirk  on  the  17th  of  July  ;  and 
on  that  question,  the  learned  Judge  (Sir  R.  Phillimore)  in  the  court 
below  has  found  that  on  the  16th  of  July,  the  Teutonia  could  not  have 
entered  the  port  of  Dunkirk  with  her  cargo  without  being  exposed 
to  the  penalties  of  trading  with  the  enemy  of  her  country  ;  but  that, 
if  this  was  an  erroneous  application  of  the  law  to  the  facts  at  that 
date,  the  circumstances  justified  tbe  master  in  pausing  and  making 
further  inquiries  as  to  the  existing  relations  between  his  own  coun- 
try and  France,  and  that  he  did  not  exceed  the  limits  of  a  reasonable 
time  in  making  the  inquiry. 

Their  Lordships  have  great  difficulty  in  agreeing  with  the 
learned  Judge  that  the  Teutonia  could  not  hftve  entered  Dunkirk 
without  being  exposed  to  the  penalties  of  trading  with  the  enemy  of 
its  country  on  the  IGth  of  July.     There  does  not  appear  to  their 


CHAP.  I.]  THE    "  TEUTONIA."  473 

Lordships  to  be  any  satisfactory  evidence  that  a  state  of  war  existed 
between  France  and  Prussia  prior  to  tlie  19th  of  July. 

Their  Lordships  do  not  think  that  either  the  declaration  made 
by  the  French  Minister  to  the  French  Chambers  on  the  16th  of 
July,  or  the  teleg^ram  sent  by  Count  Bismarck  to  the  Prussian  Am- 
bassador in  London,  in  which  he  states  that  that  declaration  appears 
to  be  equal  to  a  declaration  of  war,  amounts  to  actual  declaration  of 
war.  And  though  it  is  true,  as  stated  by  the  learned  Judge,  that  a 
war  may  exist  de  facto  without  a  declaration  of  war,  yet  it  appears 
to  their  Lordships  that  this  can  only  be  effected  by  an  actual  com- 
mencement of  hostilities,  which,  in  this  case,  is  not  alleged. 

It  is,  however,  unnecessary  further  to  consider  this  part  of  the 
case,  because  their  Lordships  agree  with  the  learned  Judge  that  the 
master  of  the  Teutonia.,  when  he  was  informed,  on  his  arrival  off 
Dunkirk,  by  the  pilot,  although  incorrectly,  that  war  had  been 
actually  declared  two  days  before,  was  entitled  to  pause  and  to  take 
a  reasonable  time  to  make  further  inquiries,  and  that  he  did  not 
exceed  the  limits  of  a  reasonable  time  in  making  inquiries. 

If  the  master  had  entered  Dunkirk,  and  it  had  turned  out  that 
war  had  been  previously  declared,  he  would  have  entered  it  with 
notice  that  he  was  entering  an  enemy's  port,  and  this  Avould  have 
obviously  exposed  his  ship  to  condemnation,  and  might  have  exposed 
himself  to  severe  penalties  when  he  returned  to  his  own  country. 
It  seems  obvious  that,  if  a  master  receives  credible  information  that, 
if  he  continues  in  the  direct  coarse  of  his  voyage,  his  ship  will  be 
exposed  to  some  imminent  peril,  as,  for  instance,  that  there  are 
pirates  in  his  course,  or  icebergs,  or  other  dangers  of  navigation,  he 
must  be  justified  in  pausing  and  deviating  from  the  direct  course, 
and  taking  any  step  which  a  prudent  man  would  take  for  the 
purpose  of  avoiding  the  danger.  And  their  Lordships  agree,  if 
authority  was  wanting,  that  the  case  of  Pale  v.  Cetcovitch.,  9  C.  B. 
(n.  s.),  430,  is  an  authority  in  point.  It  was  argued,  however,  on  the 
part  of  the  appellants,  that,  to  justify  this  course,  both  ship  and 
cargo  must  be  exposed  to  a  common  peril,  whilst  in  the  present  case 
the  cargo,  being  the  property  of  a  neutral  owner,  would  have  been 
in  no  danger  from  being  carried  into  a  French  poi't,  and  it  was 
argued  that  though  a  master  might  be  justified  in  deviating  from 
the  direct  course  of  the  voyage  for  the  purpose  of  avoiding  a  danger 
to  which  both  ship  and  cargo  were  exposed,  although  it  might  after- 
wards turn  out  that  the  information  upon  which  the  inaster  acted 
was  incorrect,  yet  that  if  the  reported  danger  was  a  danger  to  the 
ship  alone,  the  master  would  commit  a  breach  of  contract  by  deviat- 
ing from  the  direct  course  of  the  voyage  unless  the  danger  actually 


474  MEASURES    SHORT    OF    ACTUAL    WAR.  [PART  II. 

existed,  and  the  master  could  allege  that  he  was  prevented  by  one 
of  the  perils  excepted  in  the  bill  of  lading  from  pursuing  his  voyage 
ia  the  direct  course.  It  appears  to  their  Lordships,  however,  that 
there  is  no  sound  ground  for  this  distinction;  if  the  cargo  had  been 
a  Prussian  cargo  it  would  have  been  exposed  to  the  same  danger  as 
the  ship  from  entering  the  port  at  Dunkirk,  and  it  appears  to  their 
Lordships  that  when  an  English  merchant  ships  goods  on  board  a 
foreign  ship,  he  cannot  expect  that  the  master  will  act  in  any  respect 
differently  towards  his  cargo  than  he  would  towards  a  cargo  shipped 
by  one  of  his  own  country,  and  that  it  cannot  be  contended  that  the 
master  is  deprived  of  the  right  of  taking  reasonable  and  prudent 
steps  for  the  preservation  of  his  ship,  because  from  the  accident  of 
the  cargo  not  belonging  to  his  own  nation,  the  cargo  is  not  exposed 
to  the  same  danger  as  the  ship. 

On  the  whole,  therefore,  their  Lordships  are  of  opinion,  on  this 
part  of  the  case,  that  the  master  was  justified  ingoing  to  the  Downs 
for  the  purpose  of  ascertaining  whether  war  had  actually  been 
declared ;  and  they  also  entirely  agree  with  the  opinion  of  the 
learned  Judge,  that  the  master  was  guilty  of  no  unreasonable  delay  in 
not  returning  to  Dunkirk  before  war  was  actually  declared  on  the  19th 
of  July. 

[The  Lords  next  consider  "  Whether  the  master  was  bound  to 
deliver  the  cargo  at  Dover  without  any  payment  in  respect  of 
freight '? " 

The  decision  is  made  in  accordance  with  English  lav/,  and,  in  sub- 
stance, is  as  follows :  While  the  breaking  out  of  the  war  did  render 
it  illegal  for  the  Teutonia  to  enter  a  French  port,  yet  the  contract, 
mider  the  particular  terms  of  the  charter-party,  could  be  legally  per- 
formed by  the  delivery  of  the  cargo  at  some  of  the  other  ports  men- 
tioned in  the  charter-party — that  the  contract  was  not  dissolved  by 
the  impossibility  of  delivering  the  cargo  at  Dunkirk,  and  that  the 
ship-owner  had  not  lost  his  chartered  freight  nor  his  lien  for  it  at  the 
time  when  the  cargo  was  demanded  at  Dover.]  ^ 

1  In  the  case  of  The  Panama,  decided  at  the  same  time  as  the  Buena  Ventura, 
1808,  87  Fed.  927,  933,  Locke,  J.,  said  :  "  The  Panama  sailed  from  New  Yorlf  before 
the  21st  of  April,  1898,  and  was  upon  tlie  high  seas  at  tliat  time  and  at  the  time  of 
capture.  Tlie  fact  that  tiiere  had  been  no  formal  proclamation  or  declaration  of  war 
before  she  had  sailed  or  at  the  time  she  was  captured,  or  that  she  had  at  a  recent  date 
left  a  port  of  the  United  States,  cannot  he  considered  as  exempting  her  from  the 
liability  of  an  enemy's  property  to  capture,  unless  coming  directly  within  the  langua-ge 
of  tiie  President's  proclamation.  Tlie  practice  of  a  formal  proclamation  before  recog- 
nizing an  existing  war  and  capturing  enemy's  property  has  fallen  into  disuse  in 
m  xlerii  times,  and  actual  hostilities  may  determine  the  date  of  the  commencement  of 
war,  althougli  no  proclamation  may  have  been  issued,  no  declaration  made  or  no  action 


CHAP.  I.]  THE    PRIZE   CASES.  475 

THE  PRIZE   CASES. 

Supreme  Court  of  the  United  States,  1862. 

(2  Black,  665.) 

Mr.  Justice  Gkier.^  "There  are  certain  propositions  of  law  which 
must  necessarily  affect  the  ultimate  decision  of  these  cases,  and  many 
others,  which  it  will  be  proper  to  discuss  and  decide  before  we  notice 
the  special  facts  peculiar  to  each. 

"They  are,  1st.  Had  the  President  a  right  to  institute  a  block- 
ade of  ports  in  possession  of  persons  in  armed  rebellion  against  the 
government,  on  the  principles  of  international  law,  as  known  and 
acknowledged  among  civilized  states? 

"2d.  Was  the  property  of  persons  domiciled  or  residing  within 
those  States  a  proper  subject  of  capture  on  the  sea  as  'enemies' 
property  ? ' 

"I.     Neutrals  have  a  right  to  challenge  the  existence  of  a  block 
ade  de  facto,  and  also  the  authority  of  the  party  exercising  the  right 
to  institute  it.     They  have  a  right  to  enter  the  ports  of  a  friendly 

of  tlie  legislative  department  of  the  government  liail.  This  date  has  been  declared  by 
the  act  of  Congress  of  April  25,  1808,  and  by  the  proclamation  of  the  President  of  the 
next  day  to  have  been  April  21,  1808,  including  that  day,  so  that  any  Spanish  property 
afloat,  captured  from  that  time,  became  liable  to  condemnation,  unless  exempt  by  the 
executive  proclamation."     [Articles  4  and  5.] 

This  case  was  affirmed  on  appeal,  The  Panama,  1899,  176  U.  S.  535. 

While  formal  declaration  is  clearly  unnecessary  to  create  war  and  the  rights  and 
obligations  arising  from  such  a  status,  it  is  of  the  gravest  importance  that  it  should  be 
known  as  soon  as  possible  to  belligerents  and  neutrals  alike.  Tiie  parties  to  the  war 
necessarily  submit  to  its  liardships  and  inevitable  consequences  with  or  without  formal 
declaration,  but  inasmuch  as  war  affects  and  seriously  limits  tiie  rights  and  privileges 
of  neutrals  for  the  exclusive  benefit  of  the  belligerents  :  liability  to  confiscation  for 
carrying  contraband ;  inhibition  to  trade  with  blockaded  ports ;  the  subjection  of 
neutral  commerce  on  the  high  seas  to  visit  and  search,  as  will  sufficiently  appear  later, 
it  would  be  thoughtlessness  or  indifference  amounting  to  bad  faith  if  the  belligerents 
failed  to  inform  the  neutrals  of  the  existence  of  war. 

As  a  matter  of  fact,  "  there  have  been  only  eleven  formal  declarations  of  war  be- 
tween civilized  states  since  1700,  whereas  the  present  century  has  seen  over  sixty 
words  or  acts  of  reprisal  begun  without  formal  notice  to  the  power  attacked."  Law- 
rence's Int.  Law,  300.     See  Hall's  Int.  Law,  391-399;  Owen,  Declaration  of  War,  1899. 

No  formal  declaration  of  war  by  Congress,  nor  proclamation  by  the  President  is 
necessary  to  define  and  characterize  an  Indian  war;  it  is  sufficient  if  hostilities  exist 
and  military  operations  are  carried  on.  Alire's  Case,  1865,  1  Ct.  Ci.  233,  238;  Marks  v. 
U.  S.,  1893,  28  Ct.  CI.  147.  —  Ed. 

1  Statement  of  the  facts  is  omitted.  The  second  part  of  the  opinion  is  given  in 
§  32,  infra.  —  Ed. 


476  MEASURES    SHORT    OF   ACTUAL   WAR.  [PART  II. 

nation  for  the  purposes  of  trade  and  commerce,  but  are  bound  to 
recognize  the  rights  of  a  belligerent  engaged  in  actual  war,  to  use 
this  mode  of  coercion,  for  the  purpose  of  subduing  the  enemy. 

That  a  blockade  de  facto  actually  existed,  and  was  formally  de- 
clared and  notified  by  the  President  on  the  27tli  and  30tli  of  Aj)ril, 
1861,  is  an  admitted  fact  in  these  cases. 

That  the  President,  as  the  Executive  Chief  of  the  Government 
and  Commander-in-chief  of  the  Army  and  Xavy,  was  the  proper 
person  to  make  such  notification,  has  not  been,  and  cannot  be  dis- 
puted. 

The  right  of  prize  and  capture  has  its  origin  in  the  '■jus  helli^ 
and  is  governed  and  adjudged  under  the  law  of  nations.  To  legiti- 
mate the  capture  of  a  neutral  vessel  or  property  on  the  high  seas,  a 
war  must  exist  de  facto,  and  the  neutral  must  have  a  knowledge  or 
notice  of  the  intention  of  one  of  the  parties  belligerent  to  use  this 
mode  of  coercion  against  a  port,  city,  or  territory,  in  possession  of 
the  other. 

Let  us  inquire  whether,  at  the  time  this  blockade  was  instituted, 
a  state  of  war  existed  which  would  justify  a  resort  to  these  means  of 
subduing  the  hostile  force. 

"War  has  been  well  defined  to  be,  "That  state  in  which  a  nation 
prosecutes  its  right  by  force." 

The  parties  belligerent  in  a  public  war  are  independent  nations. 
But  it  is  not  necessary  to  constitute  war,  that  both  parties  should  be 
acknowledged  as  independent  nations  or  sovereign  states.  A  war 
may  exist  where  one  of  the  belligerents  claims  sovereign  rights  as 
against  the  other.  Insurrection  against  a  government  may  or  may 
not  culminate  in  an  organized  rebellion,  but  a  civil  war  always  begins 
by  insurrection  against  the  hnvful  authority  of  the  Government.  A 
civil  war  is  never  solemnly  declared ;  it  becomes  such  by  its  acci- 
dents— the  number,  power,  and  organization  of  the  persons  who 
originate  and  carry  it  on.  When  the  party  in  rebellion  occupy  and 
hold  in  a  hostile  manner  a  certain  portion  of  territory  ;  have  declared 
their  independence ;  have  cast  off  their  allegiance ;  have  organized 
armies ;  have  commenced  hostilities  against  their  former  sovereign, 
tlie  world  acknowledges  them  as  belligerents,  and  the  contest  a  war: 
They  claim  to  be  in  arms  to  establish  their  liberty  and  independence, 
in  order  to  become  a  sovereign  state,  while  the  sovereign  party  treats 
them  as  insurgents  and  rebels  who  owe  allegiance,  and  who  should 
be  punished  with  death  for  their  treason. 

The  laws  of  war,  as  established  among  nations,  have  their 
foundation  in  reason,  and  all  tend  to  mitigate  the  cruelties  and 
misery  produced  by  the  scourge  of  war.     Hence  the  parties  to  a  civil 


CHAP.  I.]  THE   PRIZE   CASES.  477 

war  usually  concede  to  each  other  belligerent  rights.  They  exchange 
prisoners,  and  adopt  the  other  courtesies  and  rules  connnon  to  public 
or  national  wars. 

"  A  civil  war,"  says  Vattel,  "■  breaks  the  bands  of  society  and  gov- 
ernment, or  at  least  suspends  their  force  and  effect ;  it  produces  in 
the  nation  two  independent  parties,  who  consider  each  other  as 
enemies,  and  acknowledge  no  common  judge.  Those  two  parties, 
therefore,  must  necessarily  be  considered  as  constituting,  at  least  for 
a  time,  two  separate  bodies,  two  distinct  societies.  Having  no  common 
superior  to  judge  between  them,  they  stand  in  precisely  the  same 
predicament  as  two  nations  who  engage  in  a  contest  and  have 
recourse  to  arms. 

"  This  being  the  case,  it  is  very  evident  that  the  common  laws 
of  war — those  maxims  of  humanity,  moderation,  and  honor — ought 
to  be  observed  by  both  parties  in  every  civil  war.  Should  the 
sovereign  conceive  he  has  a  right  to  hang  up  his  prisoners  as  rebels 
the  opposite  party  will  make  reprisals,  etc.,  etc.;  the  war  will  become 
cruel,  horrible,  and  every  day  more  destructive  to  the  nation." 

As  a  civil  war  is  never  publicly  proclaimed,  eo  nomine  against 
insurgents,  its  actual  existence  is  a  fact  in  our  domestic  history 
which  the  court  is  bound  to  notice  and  to  know.  The  true  test  of 
its  existence  as  found  in  the  writing  of  the  sages  of  the  common  law, 
may  be  thus  summarily  stated:  "When  the  regular  course  of  justice 
is  interrupted  by  revolt,  rebellion,  or  insurrection,  so  that  the  Courts 
of  Justice  cannot  be  kept  open,  civil  war  exists  and  hostilities  may 
be  prosecuted  on  the  same  footing  as  if  those  opposing  the  Govern- 
ment were  foreign  enemies  invading  the  land." 

By  the  Constitution,  Congress  alone  has  the  power  to  declare  a 
national  or  foreign  war.  It  cannot  declare  war  against  a  State,  or 
any  number  of  States,  by  virtue  of  any  clause  in  the  Constitution. 

The  Constitution  confers  on  the  President  the  whole  executive 
power.  He  is  bound  to  take  care  that  the  laws  be  faithfully  executed. 
He  is  Commander-in-chief  of  the  Army  and  Navy  of  the  United 
States,  and  of  the  militia  of  the  several  States  when  called  into  the 
actual  service  of  the  United  States.  He  has  no  power  to  initiate  or 
declare  a  war  either  against  a  foreign  nation  or  a  domestic  State. 
But  by  the  Acts  of  Congress  of  February  28th,  1795,  and  3d  of 
March,  1807,  he  is  authorized  to  call  out  the  militia  and  use  the 
military  and  naval  forces  of  the  United  States  in  case  of  invasion  by 
foreign  nations,  and  to  suppress  insurrection  against  the  government 
of  a  State  or  of  the  United  States. 

If  a  war  be  made  by  invasion  of  a  foreign  nation,  the  President  is 
not  only  authorized  but  bound  to  resist  force  by  force.     He  does  not 


478  MEASURES  SHORT  OF  ACTUAL  WAR.      [PART  II. 

initiate  the  war,  but  is  bound  to  accept  the  challenge  without  wait- 
ing for  any  special  legislative  authority.  And  whether  the  hostile 
party  be  a  foreign  invader,  or  States  organized  in  rebellion,  it  is  none 
the  less  a  war,  although  the  declaration  of  it  be  '  unilateral.'  Lord 
Stowell  (1  Dodson,  247)  observes,  "It  is  not  the  less  a  war  on  that 
account,  for  war  may  exist  without  a  declaration  on  either  side.  It 
is  so  laid  down  by  the  best  writers  on  the  law  of  nations.  A  decla- 
ration of  war  by  one  country  only,  is  not  a  mere  challenge  to  be  ac- 
cepted or  refused  at  pleasure  by  the  other." 

The  battles  of  Palo  Alto  and  Resaca  de  la  Palma  had  been  fought 
before  the  passage  of  the  Act  of  Congress  of  May  13th,  1846,  which 
recognized  "«  state  of  loar  as  existing  by  the  act  of  the  Repuhlic  of 
Mexico^''  This  act  not  only  provided  for  the  future  prosecution  of 
the  war,  but  was  itself  a  vindication  and  ratification  of  the  Act  of 
the  President  in  accepting  the  challenge  without  a  previous  formal 
declaration  of  war  by  Congress.  This  greatest  of  civil  wars  was  not 
gradually  developed  by  popular  commotion,  tumultuous  assemblies, 
or  local  unorganized  insurrections.  However  long  may  have  been 
its  previous  conception,  it  nevertheless  sprung  forth  suddenly  from 
the  parent  brain,  a  Minerva  in  the  full  panoply  of  toar.  The  Presi- 
dent was  bound  to  meet  it  in  the  shape  it  presented  itself,  without 
waiting  for  Congress  to  baptize  it  with  a  name;  and  no  name  given 
to  it  by  him  or  them  could  change  the  fact. 

It  is  not  the  less  a  civil  war,  with  belligerent  parties  in  hostile 
array,  because  it  maybe  called  an  "  insurrection"  by  one  side,  and  the 
insurgents  be  considered  as  rebels  or  traitors.  It  is  not  necessary 
that  the  independence  of  the  revolted  province  or  state  be  acknowl- 
edged in  order  to  constitute  it  a  party  belligerent  in  a  war  according 
to  the  law  of  nations.  Foreign  nations  acknowledge  it  as  war  by  a 
declaration  of  neutrality.  The  condition  of  neutrality  cannot  exist 
unless  there  be  two  belligerent  parties.  In  the  case  of  the  Sautissirna 
Trinidad  (7  Wheaton,  337),  this  Court  say :  "The  Government  of  the 
United  States  has  recognized  the  existence  of  a  civil  war  between 
Spain  and  her  colonies,  and  has  avowed  her  determination  to  remain 
neutral  between  the  parties.  Each  party  is  therefore  deemed  by  us 
a  belligerent  nation,  having,  so  far  as  concerns  us,  the  sovereign  right 
of  war."    (See  also  3  Binn.,  252.) 

As  soon  as  the  news  of  the  attack  on  Fort  Sumter,  and  the 
organization  of  a  government  by  the  seceding  States,  assuming  to 
act  as  belligerents,  could  become  known  in  Europe,  to  as  it,  on  the 
13th  of  IMay,  ISGl,  the  Queen  of  England  issued  her  proclamation  of 
neutrality,  "recognizing  hostilities  as  existing  between  the  Govern- 
ment of  the  United  States  of  America  and  certain  States  styling  them- 


CHAP.  T.]  THE    PRIZE    CASES.  479 

selves  the  Confederate  States  of  America."  This  was  im mediately 
followed  by  similar  declarations  or  silent  acquiescence  by  other 
nations. 

After  such  an  official  recognition  by  the  sovereign,  a  citizen  of  a 
foreign  state  is  estopped  to  deny  the  existence  of  a  war  with  all  its 
consequences  as  regards  neutrals.  They  cannot  ask  a  Court  to  affect 
a  technical  ignorance  of  the  existence  of  a  war,  which  all  the  world 
acknowledges  to  be  the  greatest  civil  war  known  in  the  history  of  the 
human  race,  and  thus  cripple  the  arm  of  the  Government  and  para- 
lyze its  power  by  subtle  definitions  and  ingenious  sophisms. 

The  law  of  nations  is  also  called  the  law  of  nature ;  it  is  founded 
on  the  common  consent  as  well  as  the  common  sense  of  the  world. 
It  contains  no  such  anomalous  doctrine  as  that  which  this  Court  are 
now  for  the  first  time  desired  to  pronounce,  to  wit :  That  insurgents 
who  have  risen  in  rebellion  against  their  sovereign,  expelled  her 
Courts,  established  a  revolutionary  government,  organized  armies, 
and  commenced  hostilities,  are  not  enemies,  because  they  are  traitors  ; 
and  a  war  levied  on  the  Government  by  traitors,  in  order  to  dismem- 
ber and  destroy  it,  is  not  a  iocu\  because  it  is  an  "insurrection." 

Whether  the  President  in  fulfilling  his  duties  as  Commander- 
in-chief,  in  suppressing  an  insurrection,  has  met  with  such  armed 
hostile  resistance,  and  a  civil  war  of  such  alarming  proportions  as 
will  compel  him  to  accord  to  them  the  character  of  belligerents,  is  a 
question  to  be  decided  by  Jiim,  and  this  Court  must  be  governed  by  the 
decisions  and  acts  of  the  political  department  of  the  Government  to 
which  this  power  was  entrusted.  "  He  must  determine  what  degree  of 
force  the  crisis  demands."  The  proclamation  of  blockade  is  itself 
ofiicial  and  conclusive  evidence  to  the  Court  that  a  state  of  war 
existed  which  demanded  and  authorized  a  recourse  to  such  a  measure, 
under  the  circumstances  peculiar  to  the  case. 

The  correspondence  of  Lord  Lyons  with  the  Secretary  of  State 
admits  the  fact  and  concludes  the  question. 

If  it  Avere  necessary  to  the  technical  existence  of  a  war,  that 
it  should  have  legislative  sanction,  we  find  it  in  almost  every  act 
passed  at  the  extraordinary  session  of  the  Legislature  of  1<^61,  which 
was  wholly  emplo3'ed  in  enacting  laws  to  enable  the  Government  to 
prosecute  the  war  with  vigor  and  efficiency.  And  finally,  in  1861, 
we  find  Congress  "ecc  raajore  cautela^^  and  in  anticipation  of  such 
astute  objections,  passing  an  act  "approving,  legalizing  and  making 
valid  all  the  acts,  proclamations  and  orders  of  the  President,  etc.,  as 
if  they  had  been  issued  and  done  under  the  previous  express  authority 
and  direction  of  the  Congress  of  the  LTnited  States. " 

Without  admitting  that  such  an  act  was  necessary  under  the 


ISO 


MEASURES  SHORT  OF  ACTUAL  WAR.     [PART  II. 


circumstances,  it  is  plain  that  if  the  President  had  in  any  manner 
assumed  powers  which  it  was  necessary  should  have  the  authority  or 
sanction  of  Congress,  that  on  the  well-known  principle  of  law,  '■'■omnis 
ratihahitio  retrotrahitur,  et  mandato  equiparatur^''''  this  ratification 
has  operated  to  perfectly  cure  the  defect.  In  the  case  of  Brown  v. 
United  States  (8  Cr.,  131,  132,  133),  Mr.  Justice  Story  treats  of  this 
subject,  and  cites  numerous  authorities  to  which  we  may  refer  to 
prove  this  po.sition,  and  concludes, "I  am  perfectly  satisfied  that  no 
subject  can  commence  hostilities  or  capture  property  of  an  enemy, 
when  the  sovereign  has  prohibited  it.  But  suppose  he  did,  I  would 
ask  if  the  sovereign  may  not  ratify  his  proceedings,  and  thus  by 
a  retroactive  operation  give  validity  to  them?" 

Although  Mr.  Justice  Story  dissented  from  the  majority  of  the 
Court  on  the  whole  case,  the  doctrine  stated  by  him  on  this  point  is 
correct  and  fully  substantiated  by  authority. 

The  objection  made  to  tliis  act  of  ratification,  that  it  is  ex  jjost 
facto,  and  therefore  unconstitutional  and  void,  might  possibly  have 
some  weight  on  the  trial  of  an  indictment  in  a  criminal  court.  But 
precedents  from  that  source  cannot  be  received  as  authoritative  in 
a  tribunal  administering  public  and  international  law. 

On  this  first  question,  therefore,  we  are  of  opinion  that  the  Presi- 
dent had  a  right,  J?^re  belli,  to  institute  a  blockade  of  ports  in  posses- 
sion of  the  States  in  rebellion,  which  neutrals  are  bound  to  regard.  ^ 

1  111  Miller  V.  U.  S.,  1870, 11  Wall.  2G8,  307-8,  Mr.  Justice  Strong  said  :  "  War  exist- 
ing, the  United  States  were  invested  with  belligerent  rights  in  addition  to  the  sovereign 
powers  previously  held.  Congress  had  then  full  power  to  provide  for  the  seizure  and 
confiscation  of  any  property  which  the  enemy  or  adherents  of  the  enemy  could  use  for 
the  purpose  of  maintaining  the  war  against  the  government.  It  is  true  the  war  was 
not  between  two  independent  nations.  But  because  a  civil  war,  the  government  was 
not  shorn  of  any  of  those  rights  that  belong  to  belligerency.  Mr.  Wheaton,  in  liis 
work  on  International  Law  (§  296),  asserts  the  doctrine  to  be  that  '  the  general  usage 
of  nations  regards  such  a  war  as  entitling  both  the  contending  parties  to  all  the  rights 
of  war  as  against  each  other  and  even  as  it  respects  neutral  nations.'  It  would  be 
absurd  to  hold  that,  while  in  a  foreign  war  enemy's  property  may  be  captured  and 
confiscated  as  a  means  of  bringing  the  struggle  to  a  successful  completion,  in  a  civil 
war  of  equal  dimensions,  requiring  quite  as  urgently  the  employment  of  all  means  to 
weaken  the  belligerent  in  arms  against  the  government,  the  riglit  to  confiscate  the 
property  that  may  strengtiien  such  belligerent  does  not  exist.  There  is  no  such  dis- 
tinction to  be  made.  Every  reason  for  tiie  allowance  of  a  right  to  confiscate  in  case 
of  foreign  wars  exists  in  full  force  when  the  war  is  domestic  or  civil.  In  the  ..dw^ 
IVarivick,  2  Sprague,  123,  and  in  tiie  Prize  Cases,  2  Black,  G73,  it  was  decided  that 
in  the  war  of  the  rebellion  the  United  States  sustained  the  double  character  of  a  bel- 
ligerent and  a  sovereign,  and  had  the  rights  of  both.  Rose  v.  Himely,  4  Cranch,  272 ; 
Cherriot  v.  Foussat,  3  Binney,  252  ;  Dohree  v.  Napier,  3  Scott,  225 ;  Santlssima  Trinidad, 
7  Wheaton,  306 ;   United  States  v.  Palmer,  3  Wheaton,  G35."     To  the  same   effect, 


CHAPTER   II. 
EFFECTS   OF   WAR   AS   BETWEEN  ENEMIES. 


Section  27.  —  ExEiiY's  Property  within  the  Territoey  and   Debts 

DUE    TO    THE    ExEMY. 


HA:\nLTOX   Y.   EATON. 
CiRcriT  Court  of  the  Central  States,  N.  Carolina  District,  1796. 

(2  Martin's  X.  Carolina  Reports,  83.) 

Ellsworth,  C.  J.^  It  is  admitted  that  the  boud  on  which  this  suit  is 
brought,  was  executed  by  the  defendant  to  the  plaintiffs  ;  and  that  the 
plaintiffs  have  not  been  paid.  But  the  defendant  pleads,  that  since 
the  execution  of  the   bond  a  war  has  existed,  in  which  the  plaintiffs 

Ti/ler  V.  Defrees,  1870,  11  Wall.  331,  345,  reiterating  the  doctrine  and  affirming  tlie 
judgment  of  Miller  v.  U.  S. 

In  StovalVs  Adm'r  v.  U.  S.,  1891,  Ct.  CI.  226,  240,  Chief  Justice  (then  Justice)  Nott, 
said  :  "It  has  been  held  in  an  unbroken  series  of  decisions  (from  the  Prize  Cases,  in 
1  Black's  Reports  to  Young,  Assignee  of  Collie,  in  97  U.  S.  Reports)  that  the  civil  war  in 
all  hostile  operations  must  be  regarded  as  international,  and  that '  all  property  within 
enemy's  territory  is  in  law  enemy's  property,  just  as  all  persons  in  the  same  territory 
are  enemies.'  Chief  Justice  Waite,  97  U.  S.  R.  60.  When  the  United  States  ac- 
corded to  the  Confederate  States  the  rights  of  a  belligerent  they  became  a  hostile  power 
and  their  inhabitants  public  enemies.  The  obligations  of  the  Constitution  do  not 
extend  across  military  lines  nor  into  hostile  territory.  The  law  which  governed  the 
transactions  of  the  civil  war  was  not  constitutional  law,  but  international.  It  has  been 
closely  adhered  to  ;  so  closely,  that  under  the  decisions  of  the  court  of  last  resort  the 
loyal  citizens  of  the  North  were  pr.ictically  e.xcluded  from  the  benefits  of  the  Captured 
Property  Act,  and  after  non-intercourse  began  could  do  nothing  to  save  their  property 
in  the  South  from  Confederate  confiscation  ;  and  though  they  acted  in  good  faith,  witii 
no  purpose  to  aid  the  rebellion,  seeking  simply  to  save  their  own  property  in  the  Soutli 
by  directing  its  investment  there  —  sending  nothing  into  the  insurgent  districts  and 
bringing  nothing  out,  but  leaving  the  resources  of  the  rebellion  precisely  as  they  found 
them  —  their  acts  were  held  to  be  intercourse  between  enemies,  and  the  investments 
of  their  agents  illegal  and  void.     Grossmayer's  Case  (9  Wall.  R.  72) ;  Dillon  (5  Ct.  CI. 

1  Statement  of  facts  omitted  and  only  the  opinion  of  Chief  Justice  Ellsworth  is 
given,  —  Ed. 

31 


482  EFFECTS    OF   WAR    AS    BETWEEN   ENEMIES.       [PART  II. 

were  enemies ;  and  that  during  the  war  this  debt  was  confiscated  and 
the  money  paid  into  the  treasury  of  the  State.  And  the  plaintiffs 
reply,  that  by  the  treaty  which  terminated  the  war,  it  was  stipulated, 
that  "creditors  on  either  side  should  meet  with  no  lawful  impediment, 
to  the  recovery  of  bona  jide  debts  heretofore  contracted." 

Debts  contracted  to  an  alien  are  not  extinguished  by  the  interven- 
tion of  war  with  his  nation.  His  remedy  is  suspended  while  the  war 
lasts,  because  it  would  be  dangerous  to  admit  him  into  the  country,  or 
to  correspond  with  agents  in  it ;  and  also  because  the  transfer  of 
treasure  from  the  country  to  his  nation,  would  diminish  the  ability  of 
the  former,  and  increase  that  of  the  latter,  to  prosecute  the  war.  But 
with  the  termination  of  hostilities,  these  reasons  and  the  suspension  of 
the  remedy  cease. 

As  to  the  confiscation  here  alleged  it  is  doubtless  true,  that  enemy's 
property  so  far  as  consists  in  barring  the  creditor,  and  compelling  pay- 
ment from  the  debtors  for  the  use  of  the  public,  can  be  confiscated;  and 
that  on  principles  of  equity,  though  perhaps  not  of  policy,  they  u:ay  be. 
Por  their  confiscation  as  well  as  that  of  property  of  any  kind,  may  serve 
as  an  indemnity  for  the  expenses  of  war,  and  as  a  security  against  future 
aggression.  That  such  confiscations  have  fallen  into  disuse,  has 
resulted  not  from  the  duty  which  one  nation,  independent  of  treaties, 
owes  to  another,  but  from  commercial  policy,  which  European  nations 
have  found  a  common,  and  indeed  a  strong  interest,  in  supporting. 
Civil  war,  which  terminates  in  a  severance  of  empire,  does,  perhaps, 
less  than  any  other,  justify  the  confiscation  of  debts;  because  of  the 
special  relation  and  confidence  subsisting,  at  the  time  they  were  con- 
tracted, and  it  may  have  been  owing  to  this  confiscation  as  well  as 
others,  that  the  American  States,  in  the  late  revolution,  so  generally 
forbore  to  confiscate  the  debts  of  British  subjects.  In  Virginia,  they 
were  only  sequestered  ;  in  South  Carolina,  all  debts  to  whomsoever  due 
were  excepted  from  confiscation  ;  as  were  in  Georgia,  those  of  "  British 

R.  586.  Affirmed  witliout  opinion);  Cutner  (17  Wall.  R.  617);  Lapene  (id.  601); 
Montgomery  (16  id.  395)  ;  Stoddard  (6  id.  340)." 

Oi  the  many  State  cases,  Hubbard  v.  Hornden  Express  Co.,  1872,  10  R.  I.  244,  gives 
an  exhaustive  survey  of  relation  of  insurgent  to  legitimate  government ;  Smith  v. 
Brazelton,  1870,  1  Heisk.  44,  summarizes  the  authorities  in  a  singularly  interesting  and 
felicitous  manner. 

Article  III.,  §  3  of  the  Constitution  declares  tliat  "  treason  against  the  United 
States  shall  consist  only  in  levying  war  against  them,  or  in  adhering  to  their  enemies, 
giving  them  aid  and  comfort.  No  person  shall  be  convicted  of  treason  unless  on  the 
testimony  of  two  witnesses  to  the  same  overt  act,  or  on  confession  in  open  court." 
For  the  judicial  construction  of  this  section  and  the  terms  employed  in  the  definition, 
see  U.  S.  V.  Greathouse.  and  others,  18()3,  4  Sawy.  457.  The  same  case  is  given  in 
abbreviated  form  in  McClain's  excellent  Cases  on  Constitutional  Law,  641.  —  Ed. 


CHAP.  II.]  HAMILTON   V.   EATON.  483 

merchants  and  others  residing  in  Great  Britain."  And  in  the  other 
States,  except  this,  I  do  not  recollect  that  British  debts  were  touched. 
Certain  it  is,  that  the  recommendation  of  Congress  on  the  subject  of 
confiscation  did  not  extend  to  tliem.  North  Carolina,  however,  judg- 
ing for  herself,  in  a  moment  of  severe  pressure,  exercised  the  sovereign 
power  of  passing  an  act  of  confiscation,  which  extended,  amongst 
others,  to  the  debts  of  the  plaintiffs.  Providing,  however,  at  tlie  same 
time,  as  to  all  debts  which  should  be  paid  into  the  treasury,  under  that 
act,  that  the  State  would  indemnify  the  debtors,  should  they  be  obliged 
to  pay  them. 

Allowing,  then,  that  the  debt  in  question  was  in  fact  of  right  con- 
fiscated, can  the  plaintiffs  recover  by  the  treaty  of  1783  ? 

The  fourth  article  of  that  treaty  is  in  the  following  words  :  "It  is 
agreed  that  creditors  on  either  side  shall  meet  with  no  lawful  impedi- 
ment to  the  recovery  of  the  full  value  in  sterling  money,  of  all  bona 
fide  debts  heretofore  contracted." 

There  is  no  doubt  the  debt  in  question  was  a  "  bona  fide  "  debt,  and 
theretofore  contracted,  i.  e.,  prior  to  the  treaty.  To  bring  it  within  the 
article,  it  is  also  requisite  that  the  debtor  and  creditors  should  have 
been  on  different  sides,  with  reference  to  the  parties  to  the  treaty,  and 
as  the  defendant  was  confessedly  a  citizen  of  the  United  States,  it 
must  appear  that  the  plaintiffs  were  subjects  of  the  King  of  Great 
Britain;  and  it  is  pretty  clear,  from  the  pleadings  and  the  laws  of  the 
State,  that  they  were  so.  It  is  true  that  on  the  4th  of  Juh^,  1776,  when 
North  Carolina  became  an  independent  State,  they  were  inhabitants 
thereof,  though  natives  of  Great  Britain  ;  and  they  might  have  been 
claimed  and  holden  as  citizens,  whatever  were  their  sentiments  or 
inclinations.  But  the  State  afterwards,  in  1777,  liberally  gave  to  them, 
with  others  similarly  circumstanced,  the  option  of  taking  the  oath  of 
allegiance,  or  of  departing  the  State  under  a  prohibition  to  return,  with 
the  indulgence  of  a  time  to  sell  their  estates,  and  to  collect  and  remove 
their  effects.  They  chose  the  latter ;  and  ever  after  adhered  to  the 
King  of  Great  Britain,  and  must  therefore  be  regarded  as  on  the 
British  side. 

It  is  also  pertinent  to  the  inquiry,  whether  the  debt  in  question  be 
within  the  before -recited  article,  to  notice  an  object  which  has  been 
stated  by  the  defendant's  counsel,  viz.,  that  at  the  date  of  the  treaty, 
what  is  now  sued  for  as  a  debt,  was  not  a  debt,  but  a  nonentity  ;  pay- 
ment having  been  made,  and  a  discharge  effected,  under  the  act  of  con- 
fiscation ;  and  therefore  that  the  stipulation  concerning  debts  did  not 
reach  it. 

In  the  first  place,  it  is  not  true  that  in  this  case  there  was  no  debt 
at  the  date  of  the  treaty.     A  debt  is  created  by  contract,  and  exists  till 


484  EFFECTS    OF   WAR   AS   BETWEEN   ENEMIES.       [PAET  II. 

the  contract  is  performed.  Legislative  interference,  to  exonerate  a 
debtor  from  the  performance  of  his  contract,  whether  upon  or  without 
conditions,  or  to  take  from  the  creditor  the  protection  of  law,  does  not 
in  strictness  destroy  the  debt,  though  it  may,  locally,  the  remedy  for  it. 
The  debt  remains,  and  in  a  foreign  country  payment  is  frequently 
enforced. 

Secondly,  it  was  manifestly  the  design  of  the  stipulation,  that  where 
debts  had  been  therefore  contracted,  .there  should  be  no  bar  to  their 
recovery,  from  the  operation  of  laws  passed  subsequent  to  the  con- 
tracts. And  to  adopt  a  narrower  construction,  would  be  to  leave 
creditors  to  a  harder  fate  than  they  have  been  left  to,  by  any  modern 
treaty. 

Upon  a  view,  then,  of  all  the  circumstances  of  this  case,  it  must  be 
considered  as  one  within  the  stipulation,  that  there  should  be  "  no  law- 
ful impediment  to  a  recovery."  And  it  is  not  to  be  doubted,  that 
impediments  created  by  the  act  of  confiscation,  are  lawful  impediments. 
They  must  therefore  be  disregarded,  if  the  treaty  is  a  rule  of  decision. 
Whether  it  is  so  or  not,  remains  to  be  considered. 

Here  it  is  contended  by  the  defendant's  counsel,  that  the  confiscation 
act  has  not  been  repealed  by  the  State  ;  that  the  ti-eaty  could  not 
repeal  or  annul  it ;  and  therefore  that  it  remains  in  force,  and  secures 
the  defendant.  And  further,  that  a  repeal  of  it  would  not  take  from 
him  a  right  vested,  to  stand  discharged. 

As  to  the  opinion,  that  a  treaty  does  not  annul  a  statute,  so  far  as 
there  is  an  interference,  it  is  unsound.  A  statute  is  a  declaration  of 
the  public  will,  and  of  high  authority  ;  but  it  is  controllable  by  the 
public  will  and  subsequently  declared.  Hence  the  maxim,  that  when 
two  statutes  are  opposed  to  each  other,  the  latter  abrogates  the  former. 
Xor  is  it  material,  as  to  the  effect  of  the  public  w^ill,  what  organ  it  is 
declared  by,  provided  it  be  an  organ  constitutionally  authorized  to 
make  the  declaration.  A  treaty  when  it  is  in  fact  made,  is,  with 
regard  to  each  nation  that  is  a  party  to  it,  a  national  act,  an  ex- 
pression of  the  national  will,  as  much  as  a  statute  can  be.  And  it 
does,  therefore,  of  necessity,  annul  any  prior  statute,  so  far  as  there  is 
an  interference.  The  supposition  that  the  public  can  have  two  wills  at 
the  same  time,  repugnant  to  each  other,  one  expressed  by  a  statute, 
and  another  by  a  treaty,  is  absurd. 

The  treaty  now  under  consideration  was  made,  on  the  part  of  the 
United  States,  by  a  Congress  composed  of  deputies  from  each  State, 
to  whom  were  delegated  by  the  articles  of  confederation,  expressly, 
<'the  sole  and  exclusive  right  and  power  of  entering  into  treaties  and 
alliances;"  and  being  ratified  and  made  by  them,  it  became  a  com- 
plete national  act,  and  the  act  and  law  of  every  State. 


CHAP.  II.]  HAMILTON  V.   EATON.  485 

If,  however,  a  subsequent  sanction  of  this  State  was  at  all  necessary 
to  make  the  treaty  law  here,  it  has  been  had  and  repeated.  By  a 
statute  passed  in  1787,  the  treaty  was  declared  to  be  law  in  this  State, 
and  the  courts  of  law  and  equity  were  enjoined  to  govern  their 
decisions  accordingly.  And  in  1789,  was  adopted  here  the  present 
Constitution  of  the  United  States,  which  declared,  that  all  treaties 
made,  or  which  should  be  made,  under  the  authority  of  the  United 
States,  should  be  the  supreme  law  of  the  land;  and  that  the  judges  in 
every  State  should  be  bound  thereby  ;  any  act  in  the  constitution  or  laws 
of  any  State  to  the  contrary  notwithstanding.  Surely,  then,  the  treaty 
is  now  law  in  this  State,  and  the  confiscation  act,  so  far  as  the  treaty 
interferes  with  it,  is  annulled. 

Still  it  is  urged,  that  annulling  the  confiscation  act  cannot  annul 
the  defendant's  right  of  discharge,  acquired  while  the  act  was  in 
force. 

It  is  true,  that  the  repeal  of  a  law  does  not  make  void  what  has  been 
well  done  under  it.  But  it  is  also  true,  admitting  the  right  here 
claimed  by  the  defendant,  to  be  as  substantial  as  a  right  of  property 
can  be,  that  he  may  be  deprived  of  it,  if  the  treaty  so  requires.  It  is 
justifiable  and  frequent,  in  the  adjustment  of  national  differences, 
to  concede  for  the  safety  of  the  State,  the  rights  of  individuals.  And 
they  are  afterwards  indemnified  or  not,  according  to  circumstances. 
What  is  most  material  to  be  here  noted  is,  that  the  right  or  obstacle 
in  question,  whatever  it  may  amount  to,  has  been  created  by  law,  and 
not  by  the  creditors.  It  comes  within  the  description  of  "  lawful 
impediments ;  all  of  which,  in  this  case,  the  treaty,  as  I  apprehend, 
removes. 

Let  judgment  be  for  the  plaintiffs.^ 

1  A  mucli  more  cited  case  is  Ware  v.  Hi/lton,  1796,  3  Dall.  199,  from  wliicli  the  most 
important  parts  of  the  judgments  and  opinions  of  the  Justices  are  given: 

Chase,  J.  —  "Tlie  defendant  in  error,  on  the  .  .  .  day  of  July,  1774,  passed  tlieir 
penal  bond  to  Farrell  and  Jones  for  the  payment  of  £2,976  Us.  Gd.,  of  good  British 
money.  In  1777,  the  war  of  the  revolution  having  broken  out,  the  Legislature  of  Vir- 
ginia passed  a  law  to  sequester  British  property  ;  the  3d  section  of  which  was  as 
follows : 

"  '  That  it  should  be  lawful  for  any  citizen  of  Virginia,  owing  money  to  a  subject 
of  Great  Britain,  to  pay  the  same,  or  any  part  thereof,  etc.,  .  .  .  into  the  loan-office, 
taking  tliereout  a  certificate  for  the  same,  in  the  name  of  the  creditor,  with  the  in- 
dorsement, under  the  hand  of  the  ommissioner  of  said  office,  e.xpressing  the  name  of 
the  payer.'  The  governor  and  council  were  to  see  to  the  safekeeping  of  such  sums, 
subject  to  the  future  directions  of  the  Legislature.  In  1780  the  defendants  (in  error) 
paid  into  the  loan-office  a  part  of  their  debt,  in  accordance  with  stipulations  of  the 
above  law.  After  the  return  of  peace,  they  were  sued  in  the  above  bond  in  the  circuit 
court  of  Virginia;  and  pleaded  the  said  law  of  the  Legislature  of  Virginia,  and  the  pay- 
ment thereunder,  in  bar  of  so  much  of  the  plaintiff's  debt.     The  plaintiff,  to  avoid  this 


486  EFFECTS   OF  WAR   AS   BETWEEN   ENEMIES.       [PART  11. 

BROWN  V.    THE  UNITED   STATES. 
Supreme  Court  of  the  United  States,  1814. 

(8  Cranch,  110.) 

The  Emulous,  owned  by  John  Delano  and  others,  citizens  of  the 
United  States,  was  chartered  to  a  company  carrying  on  trade  in 
Great  Britain,  one  of  wlioin  was  an  American  citizen,  for  the  purpose 
of  carrying  a  cargo  from  Savannah  to  Plymouth   (England).     After 

bar,  replied  the  fourth  article  of  the  treaty  of  peace  between  Great  Britain  and  the 
United  States,  of  178j.  For  this  replication  tiiere  was  a  general  demurrer  and  re- 
joinder. Tile  circuit  court  allowed  the  demurrer,  and  the  plaintiff  brought  the  present 
Avrit  of  error. 

"  The  counsel  for  the  plaintiff  denied  that  the  Virginia  Legislature  was  competent 
to  pass  such  a  law  ;  first,  because  it  was  contrary  to  the  law  of  nations,  relying  on 
Vattel  (lib.  3,  c.  5,  sec.  77) ;  and,  secondly,  that  the  Legislature  was  not  competent,  in- 
asniucli  as  all  sucli  power  belonged  e.Kclusively  to  Congress.  But  it  was  held  by  the 
court  that  at  tlie  time  of  passing  the  law,  Virginia  was  a  free  and  independent  State, 
inasmucii  as  Congress  as  well  as  the  several  individual  States  had  declared  their  in- 
dependence; and  tiie  articles  of  confederation  had  not  yet  been  ratified.  Supposing  a 
general  right  to  confiscate  Bntisli  property  is  admitted  to  be  in  Congress,  then  the  same 
rigiit  belonged  to  the  Legislature  of  Virginia  at  the  time  of  passing  the  act.  'J'lie 
legislative  power  of  every  nation  can  only  be  restrained  by  its  own  constitution  ;  and 
it  is  tiie  duty  of  its  courts  of  justice  not  to  question  the  validity  of  any  law  made  in 
pursuance  of  the  constitution.  In  this  case  the  law  is  obligatory  on  the  courts  of  Vir- 
ginia, and  in  ray  opinion  on  the  courts  of  the  United  States.  If  Virginia,  as  a  sov- 
ereign State,  violated  the  ancient  or  modern  law  of  nations,  in  making  the  law  of  the 
20th  October,  1777,  she  was  answerable  in  her  political  capacity  to  the  British  nation, 
whose  subjects  have  been  injured  in  consequence  of  that  law. 

"  It  ap|tears  to  rae  that  every  nation  at  war  with  another  is  justified,  by  the  general 
and  strict  law  of  nations,  to  seize  and  confiscate  all  movable  property  of  its  enemy  (of 
any  kind  or  nature  whatever)  wherever  found,  whether  within  its  territory  or  not." 
(Bynkershoek,  Q.  J.  P.  de  rebus  bellices,  lib.  1,  c.  7,  175,  177;  Vattel,  B.  4,  sec.  221; 
Sir  Tiiomas  Parker's  Rep.  207.) 

"  The  riglit  to  confiscate  the  property  of  enemies  during  war  is  derived  from  a  state 
of  war;  and  is  called  the  riglits  of  war.  This  riglit  originates  from  self-preservation, 
and  is  adopted  as  one  of  the  means  to  weaken  an  enemy,  and  to  strengthen  ourselves. 
Justice,  also,  is  another  pillar  on  which  it  may  rest;  to  wit,  a  right  to  reimburse  the 
expense  of  an  unjust  war.     Vattel.  lib.  3,  c.  8,  sec.  138  ;  and  c.  9,  sec.  161. 

"  Vattel  is  the  only  author  relied  on  (or  that  can  be  found)  to  maintain  the  distinc- 
tion between  confiscating  private  debts,  and  other  property  of  an  enemy.  Mr.  Lee 
says,  '  By  the  law  of  nations,  rights  ami  credits  are  not  less  in  our  power  than  other 
goods  ;  why,  tiierefore,  should  we  regard  the  rights  of  war  in  regard  to  one,  and  not 
as  to  the  otliers  ?  And  when  nothing  occurs  which  gives  room  for  a  proper  distinc- 
tion, the  general  law  of  nations  ought  to  prevail.'     He  gives  many  examples  of  confis- 


CHAP.  II.]  BROWN   V.   THE    UNITED    STATES.  487 

the  cargo  was  put  on  board,  the  vessel  was  stopped  in  port  by  the 
embargo  of  the  4th  of  April,  1812.     On  the  25th  of  the  same  month, 

eating  debts,  ami  concludes  (p  119),  'All  whicli  prove,  that  not  only  actions,  but  all 
■other  things  wliatever,  are  forfeited  in  time  of  war.'     Lee  on  Capture,  c.  8,  p.  1 18.  *  *  * 

'■  If  a  nation,  during  war,  conducts  iierself  contrary  to  the  law  of  nations,  and  no 
notice  is  talcen  of  such  conduct  in  the  tre.ity  of  peace,  it  is  thereby  so  far  considered 
lawful,  as  never  afterwards  to  be  revived,  or  to  be  a  subject  of  complaint.  *  *  * 

"  The  validity  of  such  a  law  (the  act  of  tiie  Virginia  Legislature)  would  not  be 
questioned  in  the  Court  of  Chancery  of  Great  Britain  ;  and  the  doctrine  seemed  strange 
to  me  in  an  American  court  of  justice."  See  Lord  Chancellor  Thurlow  in  Wright  v. 
Nutt,  1782,  H.  Black.  Rep.  p.  135,  149 ;  3  Term.  Rep.  726. 

The  otlier  justices  expressed  their  individual  opinions  in  the  case.  Patterson,  J., 
admitted,  that  in  strict  law,  debts  might  be  confiscated,  but  spoke  strongly  against  the 
policy  of  doing  so. 

Wilson,  J.,  thought  the  confiscation  of  debts  disreputable. 

Gushing,  J.,  admitted  the  right  to  confiscate  debts,  but  thought  the  fourth  article 
of  the  treaty  annulled  the  statute  of  Virginia  ;  and  further  that  the  State  ought  to  be 
responsible  to  the  debtor  for  the  amount  paid  into  the  loan-office. 

The  sixtli  article  of  the  present  Constitution  of  the  United  States,  "  Tliat  all  treaties 
made  or  which  sliall  be  ma  le,  under  the  authority  of  the  United  States,  shall  be  the 
supreme  law  of  the  land  ;  and  the  judges  in  every  State  shall  be  bound  thereby,  any- 
thing in  the  constitution,  or  laws,  of  any  State  to  the  contrary  notwithstanding,"  was 
held  to  have  a  retroactive  effect,  and  to  be  considered  in  the  same  light  as  if  the  Con- 
stitution had  been  established  before  the  making  of  the  treaty  of  1783;  and  that  Con- 
gress was  competent  to  make  the  fourth  article  of  the  said  treaty,  which  is  to  the 
following  effect :  "  It  is  agreed  that  creditors,  on  either  side,  shall  meet  with  no  lawful 
impediment  to  the  recovery  of  the  full  value,  in  sterling  money,  of  all  bona  fide  debts, 
heretofore  contracted."  And,  farther,  the  said  fourth  article  of  tlie  treaty  annulled  tiie 
act  of  confiscation  of  the  Legislature  of  Virginia,  and  the  payment  under  it.  And  on 
that  ground  the  judgment  of  the  circuit  court  was  reversed  ;  and  judgment  on  the 
demurrer  for  plaintiff  in  error,  with  costs  in  the  circuit  court  and  the  costs  of  the 
appeal. 

The  case  above  referred  to  as  reported  in  Parker  (11  William  III.)  is  Attorney-Gen- 
eral v.  Weeden  and  Shales.  This  was  the  case  of  a  naturalized  Frenchman  who  died 
during  the  war,  leaving  in  his  will  several  legacies  to  Frenchmen  living  in  Bordeaux. 
A  commission  was  issued  to  investigate  the  matter;  but  peace  was  made  meantime, 
ten  days  before  the  inquisition  was  found  and  returned.  And  after  long  debate  it  was 
resolved:  "First,  that  choses  in  action  which  belonged  to  an  alien  enemy  were  for- 
feitable to  the  Crown. 

"  Secondly,  that  this  ought  to  be  found  by  inquisition  to  make  a  title  to  the  King 
and  that  this  was  an  inquisition  of  entitling,  and  not  of  instruction.  Page's  Case,  5 
Co.  52. 

"  Thirdly,  that  the  peace,  being  concluded  before  the  inquisition  was  taken,  dis- 
charged the. cause  of  forfeiture. 

"Fourthly,  tliat  the  inquisition  taken  afterwards  did  not  relate  to  set  up  this  for- 
feiture, for  the  cause  was  but  temporary  ;  and  that  cause  being  removed  before  the 
King's  title  was  found,  the  finding  after  should  not  relate." 

See,  also,  FoUiott  v.  Ogden,  1783,  1  H.  Black.  12:5,  in  which  it  was  held  inter  alia  that 
t!ie  State  of  New  York,  during  the  American  Revolution  possessed  the  right  iniierent 
in  a  sovereign  nation  to  confiscate  the  debts  and  private  property  belonging  to  tiie 
enemy  (loyalists).     But  see  same  case  on  error  in  IL  B.,  1793,  3  Term  R.  725,  where 


488  EFFECTS   OF   WAR   AS   BETWEEN   ENEMIES.       [PART  11. 

it  was  agreed  between  the  master  of  the  ship  and  the  agent  of  the 
shippers,  that  she  should  proceed  with  her  cargo  to  New  Bedford, 
where  her  owners  resided.  While  the  ship  was  lying  at  ]!S^ew  Bed- 
ford, war  was  declared  (18th  of  June) ;  and  in  October  or  Novem- 
ber the  cargo,  consisting  of  pine  timber,  staves,  and  laths,  was 
unloaded,  the  timber  being  put  in  a  salt-water  creek  —  not  navigable, 
and  on  the  7th  November  was  sold  by  the  agent  of  the  owners,  an 
American  citizen,  to  the  claimant,  Armitz  Brown,  who  was  also  an 
American  citizen.  On  the  19th  April,  1813,  a  libel  was  filed  by  the 
attorney  for  the  United  States  in  the  District  Court  of  Massachusetts 
against  the  said  cargo,  as  well  on  behalf  of  the  United  States  as  for 
and  in  behalf  of  John  Delano,  and  for  all  others  concerned.  The 
attorney  had  no  instructions  from  his  superior,  the  President  of  the 
United  States,  but  acted  at  the  instance  of  Delano,  the  owner  of 
the  Emulous. 

The  District  Court  dismissed  the  libel.  The  Circuit  Court  (Stoky, 
Justice),  reversed  this  sentence,  and  condemned  the  pine  timber  as 
enemy's  property  forfeited  to  the  United  States.  The  claimant  ap- 
pealed to  the  Supreme  Court. ^ 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court:  — 
The  material  question  made  at  bar  is  this :  can  the  pine  timber, 
even  admitting  the  property  not  to  be  changed  by  the  sale  in  No- 
vember, be  condemned  as  prize  of  war  ?  The  cargo  of  the  Emulous 
having  been  legally  acquired  and  put  on  board  the  vessel,  having 
been  detained  by  an  embargo  not  intended  to  act  on  foreign  property, 
the  vessel  having  sailed  before  the  war,  from  Savannah,  under  a 
stipulation  to  reland  the  cargo  in  some  port  of  the  United  States, 
the  re -landing  having  been  made  with  respect  to  the  residue  of  the 
cargo,  and  the  pine  timber  having  been  floated  into  shallow  water, 
where  it  was  secured  and  in  the  custody  of  the  owner  of  the  ship,  an 
American  citizen,  the  Court  cannot  perceive  any  solid  distinction, 
so  far  as  respects  confiscation,  between  this  property  and  other 
British  property  found  on  land  at  the  commencement  of  hostilities. 

it  was  distinctly  held  by  Lord  Kenyon,  C.  J.,  tiiat  acts  of  confiscation  passed  in  tiie 
several  States  of  North  America  after  the  Declaration  of  Independence,  1776,  and 
before  the  treaty  of  peace,  1783,  by  which  Great  Britain  acknowledged  their  inde- 
pen  lence,  are  considered  as  a  nullity  in  IBritisli  courts  of  justice.  See,  however,  the 
comment  on  this  case  by  Loughborough  (as  Lord  Chancellor)  in  BarcUii/  v.  Russell, 
1797,  3  Vcs.  Jr.  423,  428.  This  latter  case,  dealing  with  the  claim  of  Maryland  to 
succeed  to  assets  of  the  proprietary  government,  should  be  considered  in  connection 
witli  the  effect  of  change  of  sovereignty.  —  Ed. 

1  Tiie  statement  of  tlie  case  is  abridged  and  part  of  the  opinion  of  the  learned 
chief  justice  has  been  omitted.  —  Ed. 


CHAP.  II.]  BROWN    V.    THE   UNITED    STATES.  489 

It  will  therefore  be  considered  as  a  question  relating  to  such  prop- 
erty generally,  and  to  be  governed  by  the  same  rule. 

Respecting  the  power  of  government  no  doubt  is  entertained. 
That  war  gives  to  the  sovereign  full  right  to  take  the  persons  and 
confiscate  the  property  of  the  enemy,  wherever  found,  is  conceded. 
The  mitigations  of  this  rigid  rule,  which  the  humane  and  wise  policy 
of  modern  times  has  introduced  into  practice,  will  more  or  less  affect 
the  exercise  of  this  right,  but  cannot  impair  the  right  itself.  That 
remains  undiminished,  and  when  the  sovereign  authority  shall 
choose  to  bring  it  into  operation,  the  judicial  department  must  give 
effect  to  its  will.  But  until  that  will  shall  be  expressed,  no  power 
of  condemnation  can  exist  in  the  court. 

The  questions  to  be  decided  by  the  court  are  : 

1st.  May  enemy's  property,  found  on  land  at  the  commencement 
of  hostilities,  be  seized  and  condemned  as  a  necessary  consequence 
of  the  declaration  of  war  ? 

2d.  Is  there  any  legislative  act  which  authorizes  such  seizure 
and  condemnation  ? 

Since,  in  this  country,  from  the  structure  of  our  government,  pro- 
ceedings to  condemn  the  property  of  an  enemy  found  within  oui 
territory  at  the  declaration  of  war,  can  be  sustained  only  upon  the 
principle  that  they  are  instituted  in  execution  of  some  existing  law, 
we  are  led  to  ask : 

Is  the  declaration  of  war  such  a  law  ?  Does  that  declaration,  by 
its  own  operation,  so  vest  the  property  of  the  enemy  in  the  govern- 
ment, as  to  support  proceedings  for  its  seizure  and  confiscation,  or 
does  it  vest  only  a  right,  the  assertion  of  which  depends  on  the  will 
of  the  sovereign  power  ? 

The  universal  practice  of  forbearing  to  seize  and  confiscate 
debts  and  credits,  the  principle  universally  received,  that  the  right 
to  them  revives  on  the  restoration  of  peace,  Avould  seem  to  prove 
that  war  is  not  an  absolute  confiscation  of  this  property,  but  simply 
confers  the  right  of  confiscation. 

Between  debts  contracted  under  the  faith  of  laws,  and  property 
acquired  in  the  course  of  trade,  on  the  faith  of  the  same  laws,  reason 
draws  no  distinction ;  and,  although,  in  practice,  vessels  with  their 
cargoes,  found  in  port  at  the  declaration  of  war,  may  have  been 
seized,  it  is  not  believed  that  modern  usage  would  sanction  the 
seizure  of  the  goods  of  an  enemy  on  land,  which  were  acquired  in 
peace  in  the  course  of  trade.  Such  a  proceeding  is  rare,  and  would 
be  deemed  a  harsh  exercise  of  the  right  of  war.  But  although 
the  practice  in  this  respect  may  not  be  uniform,  that  circiniistance 
does  not  essentially  affect  the  question.     The  inquiry  is  whether 


490  EFFECTS    OF    WAR   AS    BETWEEN   ENEMIES.       [PART  If. 

such  property  vests  in  the  sovereign  by  the  mere  declaration  of 
war,  or  remains  subject  to  a  right  of  confiscation,  the  exercise  of 
wliich  depends  on  the  national  will :  and  the  rule  which  applies  to 
one  case  so  far  as  respects  the  operation  of  a  declaration  of  war  on 
the  thing  itself,  must  apply  to  all  others  over  which  war  gives  an 
equal  right.  The  right  of  a  sovereign  to  confiscate  debts  being 
precisely  the  same  with  the  right  to  confiscate  other  property  found 
in  the  country,  the  ojieration  of  a  declaration  of  war  on  debts  and 
on  other  property  found  in  the  country  must  be  the  same.  What, 
then,  is  this  operation  ? 

Even  Bynkershoek,  who  maintains  the  broad  principle,  that  in 
war  everytliing  done  against  an  enemy  is  lawful ;  that  he  may  be 
destroyed,  though  unarmed  and  defenceless  ;  that  fraud  or  even 
poison,  may  be  employed  against  him  ;  that  a  most  unlimited  right 
is  acquired  to  his  person  and  property ;  admits  that  war  does  not 
transfer  to  the  sovereign  a  debt  due  to  liis  enemy ;  and,  therefore, 
if  payment  of  such  debt  be  not  exacted,  peace  revives  the  former 
right  of  the  creditor  ;  "  because,"  he  says,  "  the  occupation  which  is 
had  by  war  consists  more  in  fact  than  in  law."  He  adds  to  his 
observations  on  this  subject,  "let  it  not,  however,  be  supposed  that 
it  is  only  true  of  actions,  that  they  are  not  condemned  ipso  jure,  for 
other  things  also  belonging  to  the  enemy,  may  be  conceded  and 
escape  condemnation." 

Vattel  says,  that  "  the  sovereign  can  neither  detain  the  persons 
nor  the  property  of  those  subjects  of  the  enemy  who  are  within  his 
dominions  at  the  time  of  the  declaration," 

It  is  true  that  this  rule  is,  in  terms,  applied  by  Vattel  to  the 
property  of  those  only  who  are  personally  within  the  territory  at 
the  commencement  of  hostilities  ;  but  it  applies  equally  to  things  in 
action  and  to  things  in  possession ;  and  if  war  did,  of  itself,  with- 
out any  further  exercise  of  the  sovereign  will,  vest  the  property  of 
the  enemy  in  the  sovereign,  his  presence  would  not  exempt  it  from 
this  operation  of  war.  Xor  can  a  reason  be  perceived  for  maintain- 
ing that  the  public  faith  is  more  entirely  pledged  for  the  security 
of  property  trusted  in  the  territory  of  the  nation  in  time  of  peace, 
if  it  be  accompanied  by  its  owner,  than  if  it  be  confided  to  the  care 
of  others. 

Cliitty,  after  stating  the  general  right  ot  seizure,  says,  "but,  in 
strict  justice,  that  right  can  take  effect  only  on  those  possessions  of 
a  belligerent  which  have  come  to  the  hands  of  his  adversary  after 
the  declaration  of  hostilities."    (P.  07.) 

The  modern  rule,  then,  Avould  seem  to  be,  that  tangible  property 
belonging  to  an  enemy  and  found  in  the  country  at  the  commence- 


CHAP.  II.]  BROWN  V.   THE   UNITED   STATES.  491 

meut  of  war,  ought  not  to  be  iiumediately  confiscated;  and  in  almost 
every  commercial  treaty  an  article  is  inserted  stipulating  for  the 
right  to  withdraw  such  property. 

"This  rule  seems  to  be  totally  incompatible  with  the  idea  that 
war  does  of  itself  vest  the  property  in  the  belligerent  govern jnent. 
It  may  be  considered  as  the  opinion  of  all  who  have  written  on  the 
jus  belli,  that  war  gives  the  right  to  confiscate,  but  does  not  itself 
confiscate  the  property  of  the  enemy;  and  their  r.ules  go  to  the  ex- 
ercise of  this  right. 

"  The  Constitution  of  the  United  States  was  framed  at  a  time  when 
this  rule,  introduced  by  commerce  in  favor  of  moderation  and  human- 
ity, was  received  throughout  the  civilized  world.  In  expounding  that 
Constitution,  a  construction  ought  not  lightly  to  be  admitted  which 
would  give  to  a  declaration  of  war  an  effect  in  this  country  it  does 
not  possess  elsewhere,  and  which  would  fetter  that  exercise  of  entire 
discretion  respecting  enemy  property,  which  may  enable  the  Govern- 
ment to  apply  to  the  enemy  the  rule  that  he  applies  to  us. 

"  If  we  look  to  the  Constitution  itself,  we  find  this  general  reasoning 
much  strengthened  by  the  words  of  that  instrument. 

"That  the  declaration  of  war  has  only  the  effect  of  placing  the  two 
nations  in  a  state  of  hostility,  of  producing  a  state  of  war,  of  giving 
those  rights  which  war  confers;  but  not  of  operating,  by  its  own 
force,  any  of  those  results,  such  as  a  transfer  of  property,  which  are 
usually  produced  by  ulterior  measures  of  government,  is  fairly  de- 
ducible  from  the  enumeration  of  powers  which  accompanies  that  of 
declaring  war.  '  Congress  shall  have  power  '  —  'to  declare  war, 
grant  letters  of  marque  and  reprisal,  and  make  rules  concerning  cap- 
tures on  land  and  water.' 

"It  would  be  restraining  this  clause  within  narrower  limits  than  the 
words  themselves  import,  to  say  that  the  power  to  make  rules  con- 
cerning captures  on  land  and  water  is  to  be  confined  to  captures 
■which  are  exterritorial.  If  it  extends  to  rules  respecting  enemy 
property  found  within  the  territory,  then  we  perceive  an  express 
grant  to  Congress  of  the  power  in  question  as  an  independent  sub- 
stantive power,  not  included  in  that  of  declaring  war. 

"The  acts  of  Congress  furnish  many  instances  of  an  opinion  that  the 
declaration  of  war  does  not,  of  itself,  authorize  proceedings  against 
the  persons  or  property  of  the  enemy  found,  at  the  time,  within  the 
territory. 

"War  gives  an  equal  right  over  persons  and  property;  and  if  its 
declaration  is  not  considered  as  prescribing  a  law  respecting  the  per- 
son of  an  enemy  found  in  our  country,  neither  does  it  prescribe  a  law 
for  his  property.     The  act  concerning  alien  enemies,  which  confers 


492  EFFECTS   OF   WAR   AS   BETWEEN   ENEMIES.      [PART  IL 

on  the  President  very  great  discretionary  powers  respecting  tlieir 
persons,  affords  a  strong  implication  that  he  did  not  possess  those 
powers  by  virtue  of  the  declaration  of  war. 

"  The  '  act  for  the  safe-keeping  and  accommodation  of  prisoners  of 
war,'  is  of  the  same  character. 

"The  act  prohibiting  trade  with  the  enemy  contains  this  clause: 

" '  And  be  it  further  enacted,  that  the  President  of  the  United 
States  be  and  he  is  hereby  authorized  to  give,  at  any  time  within  six 
months  after  the  passage  of  this  act,  passports  for  the  safe  transpor- 
tation of  any  ship  or  other  property  belonging  to  British  subjects, 
and  which  is  now  Avithin  the  limits  of  the  United  States.' 

"The  phraseology  of  this  law  shows  that  the  property  of  a  British 
subject  was  not  considered  by  the  legislature  as  being  vested  in  the 
United  States  by  the  declaration  of  war;  and  the  authority  which  the 
act  confers  on  the  President  is  manifestly  considered  as  one  which 
he  did  not  previously  possess. 

"  The  proposition  that  a  declaration  of  war  does  not,  in  itself,  enact 
a  confiscation  of  the  property  of  the  enemy  within  the  territory  of  the 
belligerent,  is  believed  to  be  entirely  free  from  doubt.  Is  there  in 
the  act  of  Congress,  by  which  war  is  declared  against  Great  Britain, 
any  expression  which  would  indicate  such  an  intention? 

"That  act,  after  placing  the  two  nations  in  a  state  of  war,  authorizes 
the  President  of  the  United  States  to  use  the  whole  land  and  naval 
force  of  the  United  States  to  carry  the  war  into  effect,  and  'to  issue 
to  private  armed  vessels  of  the  United  States  commissions  or  letters 
of  marque  and  general  reprisal  against  the  vessels,  goods  and  effects 
of  the  government  of  the  United  Kingdom  of  Great  Britain  and 
Ireland,   and  the  subjects  thereof.' 

"That  reprisals  may  be  made  on  enemy  property  found  within  the 
United  States  at  the  declaration  of  war,  if  such  be  the  will  of  the 
nation,  has  been  admitted;  but  it  is  not  admitted  that,  in  the  decla- 
ration of  war,  the  nation  has  expressed  its  will  to  that  effect. 

"  It  cannot  be  necessary  to  employ  argument  in  showing  that  when 
the  attorney  for  the  United  States  institutes  proceedings  at  law  for 
the  confiscation  of  enemy  property  found  on  land,  or  floating  in  one 
of  our  creeks,  in  the  care  and  custody  of  one  of  our  citizens,  he  is  not 
acting  under  the  authorit}^  of  letters  of  marque  and  reprisal,  still  less 
under  the  authority  of  such  letters  issued  to  a  private  armed  vessel. 

"The  'act  concerning  letters  of  marque,  prizes  and  Yivize  goods,' 
certainly  contains  nothing  to  authorize  this  seizure. 

"There  being  no  other  act  of  Congress  which  bears  upon  the  subject, 
it  is  considered  as  proved  that  the  legislature  has  not  confiscated 
enemy  property  which  was  within  the  United  States  at  the  decla- 


CHAP.  II.]  BROWN   V.   THE   UNITED   STATES.  493 

ration  of  war,  and  that  this  sentence  of  condemnation  cannot  bs 
sustained. 

"One  view,  however,  has  been  taken  of  this  subject  which  deserves 
to  be  further  considered. 

"It  is  urged  that,  in  executing  the  laws  of  war,  the  executive  may 
seize  and  the  courts  condemn  all  property  which,  according  to  the 
modern  law  of  nations,  is  subject  to  confiscation,  although  it  might 
require  an  act  of  the  legislature  to  justify  the  condemnation  of  that 
property  which,  according  to  modern  usage,  ought  not  to  be  confis- 
cated. 

"This  argument  must  assume  for  its  basis  the  position  that  modern 
usage  constitutes  a  rule  which  acts  directly  upon  the  thing  itself  by 
its  own  force,  and  not  through  the  sovereign  power.  This  position  is 
not  allowed.  This  usage  is  a  guide  which  the  sovereign  follows  or 
abandons  at  his  will.  The  rule,  like  other  precepts  of  morality,  of 
humanity,  and  even  of  wisdom,  is  addressed  to  the  judgment  of  the 
sovereign;  and  although  it  cannot  be  disregarded  by  him  without 
obloquy,  yet  it  may  be  disregarded. 

"The  rule  is,  in  its  nature,  flexible.  It  is  subject  to  infinite  modifi- 
cation. It  is  not  an  immutable  rule  of  law,  but  depends  on  political 
considerations  which  may  continually  vary. 

"Commercial  nations,  in  the  situation  of  the  United  States,  have 
always  a  considerable  quantity  of  property  in  the  possession  of  their 
neighbors.  When  war  breaks  out,  the  question,  what  shall  be  done 
with  enemy  property  in  our  country,  is  a  question  rather  of  policy 
than  of  law.  The  rule  which  we  appl}^  to  the  property  of  our  enemy 
will  be  applied  by  him  to  the  property  of  our  citizens.  Like  all  other 
questions  of  polic}^,  it  is  proper  for  the  consideration  of  a  department 
which  can  modify  it  at  will;  not  for  the  consideration  of  a  department 
which  can  pursue  only  the  law  as  it  is  written.  It  is  proper  for  the 
consideration  of  the  legislature,  not  of  the  executive  or  judiciary. 

"It  appears  to  the  court,  that  the  power  of  confiscating  enemy  prop- 
erty is  in  the  legislature,  and  that  the  legislature  has  not  yet  declared 
its  will  to  confiscate  property  which  was  within  our  territory  at  the 
declaration  of  war.  The  court  is  therefore  of  opinion  that  there  is 
error  in  the  sentence  of  condemnation  pronounced  in  the  Circuit 
Court  in  this  case^  and  doth  direct  that  the  same  be  reversed  and 
annulled,  and  that  the  sentence  of  the  District  Court  be  affirmed."  ^ 

1  Mr.  Justice  Story,  with  a  minority  of  the  court,  held  that,' the  right  of  confisca- 
tion existing,  it  was  witliin  the  power  of  the  executive  to  enforce  confiscation,  in  the 
same  manner  that  the  executive  establislied  blockades  and  autliorized  the  capture  of 
the  enemy's  property  at  sea,  and  contraband  goods. 

Dr.   Wharton,  Lu  his  Commentaries  on  American  Law  (§  216,  pp.  307-309),  collects 


494  EFFECTS   OF    WAR   AS   BETWEEN   E>rEMIES.      [PAET  n. 

Ex  PaHe  BOUSSMAKER. 
Chancekt,  1806. 

(13  Vesei/  .Tun.  71.) 

This  was  a  petition  to  be  admitted  to  prove  a  debt  under  a  com- 
mission of  bankruptcy;  which  the  commissioners  refused  to  admit, 
upon  the  objection  that  tlie  creditors  applying  to  prove  were  alien 
enemies. 

the  authorities  and  states  tlie  following  as  the  result  of  his  stmly  and  investigation: 
"  It  has  been  held  that  the  act  of  Congress  declaring  war  against  Great  Britain  did  not 
work  such  conflscation.  The  Juniata,  Newberry,  352.  In  Brown  v.  U.  S.  tit  sup.,  the 
right  to  confiscate  debt  was  asserted  ;  and  Ware  v.  Hi/Iton,  3  Dall.  199,  was  relied  on  as 
authority.  But  the  better  view  is  that  the  property  of  the  inhabitants  of  an  invaded 
country  should  not  be  taken  by  an  invading  army  without  remuneration.  U.  .S.  v. 
Sterenson,  3  Benedict,  119;  Bluntschli,  §  6.57.  In  the  United  States  Articles  of  War, 
1863,  §2,  art.  37,  it  is  said:  '  The  United  States  acknowledge  and  protect,  in  hostile 
countries  occupied  by  them,  religion  and  morality,  strictly  private  property,  the  per- 
sons of  the  inhabitants,  especially  those  of  women,  and  the  sncredness  of  the  domestic 
relations.  Offences  to  the  contrary  shall  be  rigorously  punished.'  To  the  effect  that 
private  property  cannot  be  seized  by  an  invading  army,  unless  contraband,  see  Kent's 
Com.,i.  93  etseq. ;  U.  S.  v.  Homei/er,  2  Bond,  217;  Transactions  of  the  National  Asso- 
ciation for  the  Promotion  of  Social  Science,  1860,  pp.  103,  279;  id.,  1861,  pp.  126,  748, 
794;  id.,  1862,  pp.  89,  896,  899;  id.,  1803,  pp.  8-51,  878,  884;  id.,  1864,  pp.  596,  656; 
id.,  1808,  pp.  168-187  ;  Hautefeuille,  Droits  et  Devoirs,  i.,  340-44 ;  Martens,  Essai  sur  les 
Armateurs,  s.  45;  and  other  authorities  given  in  Field,  ut  .wp.  Heffter  (Volkerrecht, 
s.  130,  132,  139,  140,  175,  192)  holds  that  war  gives  only  actual  possession,  but  not  the 
legal  property  in  such  captures. 

"Dr.  Woolsey  (Int.  Law,  §118,  nofe)  after  noticing  Hamilton's  argument  against 
confiscation  { Hamilton's  Works,  Vol.  VII.,  19th  letter  of '  Camillus  '),  adds,  speaking  of 
the  confiscation  of  the  private  property  of  the  subject  of  the  enemy,  '  The  foreigner 
brought  his  property  here,  it  can  at  once  be  said,  knowing  the  risk  he  might  run  in  the 
event  of  a  war.  Why  should  lie  not  incur  the  risk  ?  He  should  incur  it,  say  the  older 
practice  and  the  older  autliorities.  He  should  not,  says  the  modern  practice,  although 
international  law  in  its  rigor  involves  him  in  it.  He  should  not,  according  to  the  true 
principle  of  justice,  because  his  relation  to  the  state  at  war  is  not  the  same  with  the 
relation  of  his  sovereign  or  government ;  because,  in  short,  he  is  not  in  the  full  sense 
an  enemy.'  To  this  it  ma}'  be  added  that  when  a  foreigner  invests  property  in  a 
country  with  the  permission  of  its  government,  there  is  an  implied  understanding  that 
his  title  thereto  will  be  respected  unless  divested  by  his  personal  act. 

"  As  sustaining  the  right  of  seizure  of  private  property  in  an  enemy's  country,  see 
The  Vfinu.i,  8  Cranch,  2.53;  The  Ann  Green,  1  Gall.  274  ;  The  LIUa,2  Sprague,  177; 
The  Frenndschaft,  3  Wheat.  15,  4  Wheat.  105.  That  this  does  not  impress  with  bel- 
ligerency a  neutral  on  motion  to  leave  bona  fide  belligerent  territory,  see  T/ie  Venus, 
ut  supra;  The  St.  Lawrence,  1  Gall.  467.     That  neutrals  and  citizens  are  to  be  allowed 


CHAP.  II.]  EX   PARTE   BOUSSMAKER.  495 

The  Lord  Chancellor,  Erskine,  said:  "If  this  had  been  a  debt 
arising  from  a  contract  with  an  alien  enemy,  it  could  not  possibly 
stand;  for  the  contract  would  be  void.  But,  if  the  two  nations  were 
at  peace  at  the  date  of  the  contract,  from  the  time  of  war  taking 
place  the  creditor  could  not  sue;  but  the  contract  being  originally 
good,  upon  the  return  of  peace  the  right  would  revive.  It  Avould  be 
contrary  to  justice,  therefore,  to  confiscate  this  dividend.  Though 
the  right  to  recover  is  suspended,  that  is  no  reason  Avhy  the  fund 
should  be  divided  among  the  other  creditors.  The  point  is  of  great 
moment,  from  the  analogy  to  the  case  of  an  action;  and  it  is  true,  a 
court  of  law  would  not  take  notice  of  the  objection  without  a  plea. 
It  must  appear  upon  the  record.  *  *  *  The  policy,  avoiding  con- 
tracts with  an  enemy  is  sound  and  wise;  but  when  the  contract 
was  originally  good,  and  the  remedy  is  only  suspended,  the  proposi- 
tion, that  therefore  the  fund  should  be  lost,  is  very  different. 

"Let  the  claim  be  entered;  and  the  dividend  reserved." 

a  reasonable  time,  after  breaking  out  of  war,  to  withdraw  from  a  belligerent  country, 
see  The  Sarah  Starr,  Blatch.  Pr.  Ca.  650  ;   The  General  Pinckney,  ibid.  6G8. 

"  In  ^fitt^hell  v.  Harmony  (13  Howard,  115),  it  was  held  that  private  property  could 
only  be  taken  by  a  military  commander  in  case  of  necessity,  for  public  use,  to  prevent 
it  being  used  as  contraband  of  war  or  falling  into  the  enemy's  hands.  This,  in  the  late 
civil  war,  was  held  to  be  the  case  with  cotton,  which,  as  one  of  the  chief  military  sup- 
ports of  the  Confederacy,  was  regarded  as  contraband.  Alexander's  Cotton,  2  Wall. 
404.  In  this  case,  Chief  Justice  Chase,  giving  the  opinion,  declared  that  tlie  right  of 
capture  'may  now  be  regarded  as  substantially  restricted  to  'special  cases'  (citing 
Chancellor  Kent),  'dictated  by  the  necessary  operation  of  war;'  and  as  excluding,  in 
general,  '  the  seizure  of  the  private  property  of  pacific  persons  for  the  sake  of  gain.' 
In  U.  S.  V.  Klein,  13  Wall.  128,  he  says  :  '  No  titles  were  divested  in  the  insurgent 
States,  unless  in  pursuance  of  a  judgment  rendered  after  due  legal  proceedings.  The 
Government  recognized,  to  the  fullest  extent,  the  humane  maxims  of  the  modern  law  of 
nations,  which  exempt  property  of  non-combatant  enemies  from  capture  or  booty  of 
war.'     To  the  same  effect  see  Lamar  v.  Brown,  92  U.  S.  194. 

" '  In  respect  to  real  property  the  acquisition  by  the  conqueror  is  not  fully  consum- 
mated until  confirmed  by  a  treaty  of  peace,  or  by  the  entire  submission  of  or  destruc- 
tion of  the  State  to  which  it  belonged.'     Clifford,  J.,  U.  S.  v.  Huckabee,  16  Wall.  434." 

For  a  very  recent  formulation  of  the  right  of  confiscation  of  private  property  of 
enemies  in  war,  see  Magoon's  Military  Occupation,  264-281.  —  Ed. 


496  EFFECTS   OF   WAR   AS   BETWEEN  ENEMIES.       [PART  H. 

WOLFF  V.    OXHOLM. 

King's  Bench,  1817. 

(6  Maule  and  Selwyn,  92.) 

Oxholm,  a  Danish  subject,  was  indebted,  February  7,  1800,  to  the 
firm  of  Wolff  &  Dorville,  Enghsh  subjects,  in  the  sum  of  £2,101  Is.  bd. 
sterUng  money,  for  which  a  suit  was  instituted  in  the  Danish  courts 
by  W^olff  &  Dorville  through  their  proctor,  resident  in  Denmark. 
The  defendant  set  up  certain  counter-claims  in  defense.  To  avoid 
this,  the  plaintiffs  in  1806  assigned  the  debt  to  a  Danish  subject, 
who  should  sue  and  recover  in  his  own  name,  thus  avoiding  some 
technicality  in  the  Danish  laws  which  affected  the  case. 

The  defendant,  in  Sept.,  1806,  instituted  a  cross-suit.  In  1807, 
whilst  these  suits  were  pending,  a  war  broke  out  between  Great 
Britain  and  Denmark ;  and  an  ordinance  was  made  by  the  govern- 
ment of  Denmark,  August  16,  1807,  by  which  all  ships,  goods,  money, 
and  money's  worth,  of  or  belonging  to  English  subjects,  were  declared 
to  be  sequestrated  and  detained ;  and  by  another  law  or  ordinance 
of  the  Danish  government,  dated  Sept.  9, 1807,  all  persons  were  com- 
manded with  in  three  days  after  the  publication  thereof  (wherever 
it  was  not  then  already  done)  to  transmit  an  account  of  the  debts  due 
to  English  subjects,  of  whatsoever  nature  or  quality  they  might  be, 
the  whole  of  which  were  directed  to  be  paid  into  the  Danish  treasury, 
and  in  case  of  concealment  the  person  so  offending  was  to  be  pro- 
ceeded against  by  the  officers  of  the  exchequer.  In  virtue  of  this 
law  and  ordinance,  commissioners  were  appointed  to  receive  the 
debts  declared  to  be  sequestrated:  and  as  a  consequence  of  the 
ordinance,  the  suit  of  Mountford  (the  assignee  of  Wolff  &  Co.)  against 
the  defendant  was  not  further  prosecuted,  and  in  1807,  the  proctor 
gave  information  to  the  commissioners  of  the  debt.  The  commis- 
sioners authorized  such  payments  at  the  then  current  rate  of  exchange, 
six  Danish  dollars  to  the  pound  sterling. 

In  1812  the  defendant  paid  to  the  commissioners  the  amount  of  the 
debt  with  the  accrued  interest,  and  took  their  receipt  for  the  same ; 
upon  the  production  of  which,  the  court  quashed  the  cause  depending 
between  Mountford  and  the  defendant.  It  is  said  the  rate  of  ex- 
change at  the  time  of  payment,  was  forty-five  to  fifty  dollars  to  the 
pound  sterling.  In  1814,  the  defendant  arrived  in  this  country  and 
was  arrested,  and  held  to  bail  by  the  plaintiffs  for  the  debt. 


CHAP.  II.]  WOLFF    V.   OXHOLM.  497 

Lord  Ellenborough,  C.  J.  [after  an  elaborate  examination  of 
the  older  authorities,  Grotius,  Puffendorf,  Vattel  and  others],  delivered 
the  opinion  of  the  court. 

It  was  admitted  that,  notwithstanding  all  the  violent  measures  to 
which  recourse  has  been  had  during  the  extraordinary  warfare,  that 
we  have  witnessed  in  our  own  times,  this  ordinance  of  the  court  of 
Denmark  stands  single  and  alone,  not  supported  by  any  precedent, 
nor  adopted  as  an  example  in  any  other  state.  The  ordinance  itself, 
however,  so  far  as  we  can  learn  from  this  case,  was  not  followed  up 
by  any  practical  measure  of  compulsion  on  the  subjects  of  Denmark. 
Nothing  in  the  nature  of  the  process  against  the  defendant  to  enforce 
the  payment  of  this  particular  debt,  nothing  analogous  to  the  seizure 
or  condemnation  of  corporeal  things  taken  in  the  time  of  war  occurred 
on  this  occasion;  and  although  the  commissioners  appointed  under 
the  ordinance  to  receive  the  sequestered  moneys  were  informed  of  this 
debt  as  early  as  the  year  1807,  yet  the  defendant  did  not  pay  the 
money  until  1812.  An  allusion  was  made  in  the  course  of  the  argu- 
ment to  a  statute  in  our  own  country,  the  34  G.  3,  c.  79.  This,  how- 
ever, was  not  an  act  of  confiscation  to  the  benefit  of  the  state,  but  a 
measure  of  policy  not  less  generous  than  lawful,  by  which  at  the  same 
time  that  the  transmission  of  money  to  the  enemies  of  the  state  was 
prevented,  the  money  itself  was  called  in,  secured,  and  kept  for  those 
to  whom  it  was  due,  until  the  return  of  peace  should  enable  them  to 
receive  it.  Considering,  therefore,  that  the  right  of  confiscating 
debts  contended  for  on  the  authority  of  these  citations  from  Vattel  is 
not  recognized  by  Grotius,  and  is  impugned  by  Puffendorf  and  others, 
that  such  confiscation  was  not  general  at  any  period  of  time,  and  that 
no  instance  of  it,  except  the  ordinance  in  question,  is  to  be  found  for 
something  more  than  a  century,  we  think  our  judgment  would  be 
pregnant  of  mischief  to  future  times,  if  we  did  not  declare,  that  in 
our  opinion,  this  ordinance,  and  the  payment  to  the  commissioners 
appointed  under  it,  do  not  furnish  a  defence  to  the  present  action; 
and  if  they  cannot  do  this  of  themselves,  neither  can  they  do  so  by 
the  aid  of  the  proceedings  in  the  Danish  court.  The  parties  went 
into  that  court  expecting  justice,  according  to  the  then  existing  laws 
of  the  country,  and  are  not  bound  by  the  quashing  of  their  suit,  in 
consequence  of  a  subsequent  ordinance,  not  conformable  to  the  usage  of 
nations,  and  which,  therefore,  they  could  not  expect,  nor  are  they  or 
we  bound  to  regard. 

Postea  to  the  plaintiffs.* 

^  This  decision  is  directly  at  variance  with  tlie  American  cases  above  quoted.  Sir 
Rol)ert  Piiillimore  (International  Law,  III.,  728)  in  reviewing  this  ju<lt:inent,  sliows 
that  the  inferences  from  the  language  of  Vattel,  Grotius,  and  Puffendorf  were  not  war- 

82 


498  EFFECTS   OF   WAE   AS  BETWEEN  ENEMIES.      [PART  H. 


Section  28.  — Private  Contracts. 


HOARE   V.    ALLEK. 
Supreme  Court  of  Pennsylvania,  1789. 

(2  Dallas,  102.) 

This  was  a  scire  facias  oil  a  mortgage  given  on  the  4th  December, 
1773,  for  securing  the  payment  of  £16,000  sterling,  with  interest. 
It  was  tried  at  Chester,  Nisi  Prius,  on  the  4th  May,  1789,  before  the 
Chief  Justice  [McKean],    Atlee  and  Bryan,  justices;  when  it  ap- 

ranted  ;  while  the  authority  of  Bynkershoek  and  the  Dutch  tribunals  was  hardly 
touclied  upon.  That,  moreover,  to  the  high  authority  of  Story  and  the  American  tri- 
bunals no  allusion  appears  to  liave  been  made  by  counsel  or  judge.  "  Perhaps,"  he 
continues,  "if  the  occasion  should  present  itself,  the  decision  of  Lord  Ellenborough 
migiit  he  reversed  in  England.  It  was  the  decision  of  a  single  court  not  much  ac- 
customed to  deal  witii  questions  of  international  law." 

The  provocation  for  the  act  of  the  Danish  Government  was  very  great.  An  English 
squadron  had  taken  violent  possession  of  the  Danish  fleet  in  time  of  peace  between 
the  two  countries  (1807)  ;  and  at  the  breaking  out  of  war  in  consequence  of  this  act 
the  English  government  had  confiscated  all  the  Danish  ships  found  in  English  ports 
as  droits  of  admiralty. 

In  the  case  of  the  Johanna  Emilie,  Spinks'  Prize  Cases,  14  (1854),  Dr.  Lushington 
said .  "  If  the  property  was  on  land,  according  to  the  ancient  law,  it  was  also  seizable  ; 
and  certainly  during  the  American  war  there  were  not  wanting  instances  in  which 
such  property  was  seized  and  condemned  b}'  law  —  not  by  tlie  autiiority  of  tliis  court, 
but  of  another.  That  rigor  was  afterwards  relaxed.  I  believe  no  such  instance  has 
occurred  from  the  time  of  tlie  American  war  to  the  present  day  —  no  instance  in  which 
property  inland  was  subject  to  search  or  seizure,  but  no  doubt  it  would  be  competent 
to  the  authority  of  the  Crown  if  it  thought  fit." 

During  the  civil  war  in  the  United  States  (1861),  the  Congress  of  the  Confederate 
States  confiscated  by  act  of  Congress  all  property,  movable  or  iminovable,  and  all  rights, 
credits,  and  interests  lield  within  the  Confederacy  by  or  for  any  alien  enemy,  except 
public  stocks  and  securities.  And  all  persons  domiciled  within  the  enemy's  country 
were  held  to  be  subject  to  the  provisions  of  the  act.  Act  of  August  6th,  1861. 
McPhcrson,  History  of  the  liebellion,  203. 

It  would  seem  to  be  clear  that,  by  tlie  strict  law,  tangible  property  and  debts  are 
still  subject  to  confiscation  by  a  belligerent.  But  it  is  equally  clear  that  the  entire 
drift  of  modern  o[)inion  ami  practice  is  opposed  to  the  exercise  of  that  right.  In  the 
case  of  Ilunr/er  v.  Abbott,  1807,  IG  Wall.  532,  the  Supreme  Court  of  the  United  States 
said  :  "In  strictness  it  (the  right  of  confiscating  such  debts)  may  still  be  said  to  exist, 
tut  it  may  well  be  considered  as  a  naked  and  impolitic  right,  condemned  by  the  en- 
lightened conscience  of  modern  times." 

On  the  other  hand,  property  of  the  enemy  found  afloat  in  ports  at  the  outbreak  of 
war,  as  ships  with  their  cargoes,  has  generally,  in  the  absence  of  a  contrary  agreement. 


CHAP.  II.]  HOARE   V.    ALLEN.  499 

peared  that  the  plaintiff  was  a  British  subject,  resident  in  London; 
that  Amos  Strettle  was  his  attorney  in  fact,  at  tlie  time  of  the  execu- 
tion of  the  mortgage  and  after;  but  it  did  not  appear,  whether  he 
continued  to  act  as  such  subsequent  to  the  war.  He  resided  in  tlie 
State  till  his  death,  which  was  about  *  *  *  The  question  that  was 
made  in  this  cause  was,  whether  interest  should  run  during  the  war? 

By  the  Court:  —  This  action  is  brought  on  a  mortgage  for  £16,000, 
payable  on  4th  December,  1774.  No  suit  could  be  brought  on  the 
mortgage  before  the  4th  December,  1775.  Before  that  period  the  war 
commenced,  and  on  the  10th  September,  1775,  the  Congress  prohibited 
the  exportation  of  commodities,  etc.,  to  Great  Britain,  or  any  of  her 
dominions.  This  was  obligatory  on  their  constituents,  and  it  became 
unlawful  to  make  any  remittances  after  this  to  the  enemy.  During 
a  war  all  civil  actions  between  enemies  are  suspended;  debts  are 
suspended  also,  but  restored  by  the  peace.  For  the  term  of  seven 
and  a  half  years,  viz.,  from  tlie  10th  September,  1775,  to  tlie  10th 
March,  1783,  the  defendant  could  not  have  paid  this  money  to  the 
plaintitf,  who  was  an  alien  enemy,  without  a  violation  of  the  positive 
laws  of  this  country,  and  of  the  laws  of  nations.  They  ought  not, 
therefore,  to  suffer  for  their  moral  conduct,  and  their  submission  to 
the  laws. 

Interest  is  paid  for  the  use  or  forbearance  of  money.  But  in  the 
case  before  us,  there  could  be  no  forbearance;  because  the  plaintiff 
could  not  enforce  the  payment  of  the  principal;  nor  could  the  defend- 
ants pay  him,  consistent  with  law;  nor  could  they  pay  it  without 
going  into  the  enemy's  country,  where  the  plaintiff  was.  Where  a 
person  is  prevented,  by  law,  from  paying  the  principal,  he  shall  not 
be  compelled  to  pay  interest  during  the  prohibition,  as  in  the  case  of 
a  garnishee,  in  a  foreign  attachment. 

It  is  urged,  that  a  remittance  in  bills  of  exchange  furnished  the 
enemy  with  no  money.  Yet,  it  is  clear  that  it  would  furnish  the 
enemy  with  the  means  of  carrying  on  the  war,  within  the  bowels  of 
the  country,  without  bringing  any  money  into  it.  It  is  well  known 
that  the  bills  drawn  by  the  British  army  were  the  principal  bills  that 
were  bought  and  sold;  those  drawn  by  American  citizens  Avere  gen- 
erally protested. 

It  has  been  said  that  it  might  have  been  paid  to  Strettle;  but  that 

been  confiscated,  following:  the  rules  still  in  practice  in  respect  of  private  property  of 
the  enemj'  at  sea.  In  Brown  v.  The  United  States,  supra,  tlie  Supreme  Court  was  care- 
ful to  exclude  from  the  rule  of  the  decision  property  found  afloat  in  ports.  Rut  Jtere, 
too,  tliere  are  strong  indications  of  a  milder  rule,  if  indeed  it  is  not  already  firmly 
established.  The  most  recent  practice  of  the  United  States  appears  in  the  President's 
Proclamation  of  April  20,  1898;  its  official  construction  and  judicial  interpretation  in 
tlie  case  of  the  Buena  Ventura,  1899,  175  {]  S-  384.  —  Ed. 


500  EFFECTS    OF    WAR   AS    BETWEEN   ENEiUES.       [PART  II. 

depended  upon  liis  pleasure,  whether  he  chose  to  act  as  attorney  or 
not. 

I  have  searched  for  precedents  both  in  the  civil  law,  and  in  the 
books  of  reports;  but  could  find  none.  We,  therefore,  determine  on 
principle  and  analogy,  and  are  unanimously  of  opinion,  that  the 
plaintiff  is  not  entitled  to  interest  from  the  10th  September,  1775,  to 
10th  March,  1783;  but  during  the  rest  of  the  time  he  must  be  allowed 
full  interest. 

The  jury  adopted  the  principles  of  the  charge;  but  struck  off  seven 
and  a  half  years'  interest.^ 


HANGER   V.    ABBOTT. 

Supreme  Court  of  the  Uxited  States,  1867. 

(6  Wallace,  532.) 

Error  to  the  Circuit  Court  for  the  Eastern  District  of  Arkansas. 

J.  &  E.  Abbott,  of  New  Hampshire,  sued  Hanger,  of  Arkansas,  in 
assumpsit.  The  latter  pleaded  the  statute  of  limitations  of  Arkan- 
sas, which  limits  such  action  to  three  years.  The  former  replied  the 
rebellion,  which  broke  out  after  the  cause  of  action  accrued,  and 
closed  for  more  than  three  years  all  lawful  courts.  On  demurrer, 
and  judgment  against  it,  and  error  to  this  court,  the  question  here 
was,  simply,  whether  the  time  during  which  the  courts  in  Arkansas 
were  closed  on  account  of  the  rebellion,  was  to  be  excluded  from  the 
computation  of  time  fixed  by  the  Arkansas  statute  of  limitations 
within  which  suits  on  contracts  were  to  be  brought,  there  being  no 
exception  by  the  terms  of  the  statute  itself  for  any  such  case.^ 

Mr.  Justice  Clifford  delivered  the  opinion  of  the  court:  — 

"Proclamation  of   blockade  was    made   by  the  President   on    the 

1  In  tlie  interesting  case  of  Foxcmft  jf-  Gallou-ai/  v.  NagJe,  1791,  2  Dall.  132,  it 
appeared  tliat  Galloway  was  with  the  enemy  (British  army)  while  they  were  in 
I'liiladelphiii  and  that  Nagle,  the  defendant,  then  lived  witiiin  three  miles  of  the 
citj'  and  might,  therefore,  have  gone  in  and  come  out  at  pleasure  (liad  such  not 
heen  expressly  forhidden  hy  statute).  On  these  facts  and  allegations  it  was  held  = 
"  I?y  the  court  :  It  has  heen  frequently  settled,  that  the  debt  being  suspended 
during  the  war,  no  interest  could  arise  upon  it  If  the  plaintiffs  mean  to  make  it  a 
jinint,  they  will  liave  an  opportunity  to  do  so,  at  the  return  of  the  jiosten.  We  are  all 
cif  opinion,  however,  tliat  the  interest  during  the  war  should  be  deducted;  that  is,  for 
seven  and  a  half  years.  Verdict  accordingly."  See,  also,  Thomas  v.  Hunter,  18B8, 
2'.t  Md.  40r,;  Jioherts  v.  Cocke,  1877,  28  Gratt.  207  ;  McVeigh  v.  Bk.  of  Old  Dominion, 
1875.  2fi  Gratt.  188.— 'Ed. 

1  Only  selected  extracts  are  given  from  the  opinion  of  the  learned  justice.  —  Ed. 


CHAP.   II.]  HANGER   V.    ABBOTT.  501 

nineteenth  day  of  April,  1.S61,  and,  on  tlie  tliirteenth  day  of  July,  in 
the  same  year,  Congress  passed  a  law  autliorizing  the  President  to 
interdict  all  trade  and  intercourse  between  the  inhabitants  of  the 
States  in  insurrection  and  the  rest  of  the  United  States.  12  Stat,  at 
Large. 

"  War,  when  duly  declared  or  recognized  as  such  by  the  war-mak- 
ing power,  imports  a  prohibition  to  the  subjects,  or  citizens,  of  all 
commercial  intercourse  and  correspondence  with  citizens  or  persons 
domiciled  in  the  enemy's  country.  Upon  this  principle  of  public  law 
it  is  the  established  rule  in  all  commercial  nations,  that  trading  with 
the  enemy,  except  under  a  government  license,  subjects  the  property 
to  confiscation,  or  to  capture  and  condenniation. 

"  Partnership  with  a  foreigner  is  dissolved  by  the  same  event 
which  makes  him  an  alien  enemy,  because  there  is  in  that  case  an 
utter  incompatibility  created  by  operation  of  law  between  the  part- 
ners as  to  their  respective  rights,  duties,  and  obligations,  both  public 
and  private,  which  necessarily  dissolves  the  relation,  independent  of 
the  Mill  or  acts  of  the  parties.  Direct  consequence  of  the  rule  as 
established  in  those  cases  is,  that  as  soon  as  war  is  commenced  all 
trading,  negotiation,  communication,  and  intercourse  between  the 
citizens  of  one  of  the  belligerents  with  those  of  the  other,  without 
the  permission  of  the  government,  is  unlawful.  No  valid  contract, 
therefore,  can  be  made,  nor  can  any  promise  arise  by  implication  of 
law,  from  any  transaction  with  an  enemy.  Exceptions  to  the  rule 
are  not  admitted ;  and  even  after  the  war  has  terminated,  the  de- 
fendant, in  an  action  founded  upon  a  contract  made  in  violation  of 
that  prohibition,  may  set  up  the  illegality  of  the  transaction  as  a 
defence.  *  *  * 

"  Executory  contracts  also  with  an  alien  enemy,  or  even  with  a 
neutral,  if  they  cannot  be  performed  except  in  the  way  of  commercial 
intercourse  with  the  enemy,  are  dissolved  by  the  declaration  of  war, 
which  operates  for  that  purpose  with  a  force  equivalent  to  an  act 
of  Congress.  JSxjjosito  v.  Bowden,  4  Ellis  &  Blackburne,  9G3;  same 
case,  7  id.  778. 

"In  former  times  the  right  to  confiscate  debts  was  admitted  as  an 
acknowledged  doctrine  of  the  law  of  nations,  and  in  strictness  it 
may  still  be  said  to  exist,  but  it  may  well  be  considered  as  a  naked 
and  impolitic  right,  condemned  by  the  enlightened  conscience  and 
judgment  of  modern  times.  Better  opinion  is  that  executed  con- 
tracts, such  as  the  debt  in  this  case,  although  existing  prior  to  the 
war,  are  not  annulled  or  extinguished,  but  the  remedy  is  only  sus- 
pended, which  is  a  necessary  conclusion,  on  account  of  the  inability 
of  an  alien  enemy  to  sue  or  to  sustain,  in  the  language  of  the  civil- 
ians, aiiersonastandiinjudicio,     Flint  \.   Waters,  15  East.  2G0. 


502  EFFECTS    OF   WAR    AS   BETWEEN   ENEMIES.       [PART  II. 

"  Trading,  which  supijoses  tlie  making  of  contracts,  and  whicli  also 
involves  the  necessity  of  intercourse  and  correspondence,  is  neces- 
sarily contradictory  to  a  state  of  war,  but  there  is  no  exigency  in 
war  which  requires  that  belligerents  should  conliscate  or  annul  the 
debts  due  by  the  citizens  of  the  other  contending  party,  *  *  * 

"  Under  the  thirty-fourth  section  of  the  Judiciary  Act,  the  statutes 
of  limitations  of  the  several  States,  where  no  special  provision  has 
been  made  by  Congress,  form  the  rule  of  decision  in  the  courts  of  the 
United  States,  and  the  same  effect  is  given  to  them  as  is  given  in 
the  courts  of  the  State.  *  *  * 

"  When  our  ancestors  immigrated  here,  they  brought  with  thera 
the  statute  of  21  Jac.  1,  c.  16,  entitled  'An  act  for  limitation  of  ac- 
tions, and  for  avoiding  of  suits  in  law,'  known  as  the  statute  of 
limitations.  *  *  * 

"  Persons  within  the  age  of  twenty-one  years,  femes  covert,  non 
comiyos  mentis,  persons  imprisoned  or  beyond  the  seas,  were  excepted 
out  of  the  operation  of  the  third  section  of  the  act,  and  were  allowed 
the  same  period  of  time  after  such  disability  was  removed.  Just 
exceptions  indeed  are  to  be  found  in  all  such  statutes,  but  when  ex- 
amined it  will  appear  that  they  Avere  framed  to  prevent  injustice  and 
never  to  encourage  laches  or  to  promote  negligence.  Cases  where 
the  courts  of  justice  are  closed  in  consequence  of  insurrection  or 
rebellion  are  not  within  the  express  terms  of  any  such  exception,  but 
the  statute  of  limitations  was  passed  in  1623,  more  than  a  century 
before  it  came  to  be  understood  that  debts  due  to  alien  enemies  were 
not  subject  to  confiscation.  Down  to  1737,  says  Chancellor  Kext, 
the  opinion  of  jurists  was  in  favor  of  the  right  to  confiscate,  and 
many  maintained  that  such  debts  were  annulled  by  the  declaration 
of  war.  Regarding  such  debts  as  annulled  by  war,  the  law-makers 
of  that  day  never  thought  of  making  provision  for  the  collection  of 
the  same  on  the  restoration  of  peace  between  the  belligerents.  Com- 
merce and  civilization  have  wrought  great  changes  in  the  spirit  of 
nations  touching  the  conduct  of  war,  and  in  respect  to  the  principles 
of  international  law  applicable  to  the  subject. 

"  Constant  usage  and  practice  of  belligerent  nations  from  the  ear- 
liest times  subjected  enemy's  goods  in  neutral  vessels  to  capture  and 
condemnation  as  prize  of  war,  but  the  maxim  is  now  universally  ac- 
knowledged that  '  free  ships  make  free  goods '  which  is  another 
victory  of  commerce  over  the  feelings  of  avarice  and  revenge.  Indi- 
vidual debts,  as  a  general  remark,  are  no  longer  the  subject  of  con- 
fiscation, and  the  rule  is  universally  admitted  that  if  not  confiscated 
during  the  war,  the  return  of  peace  brings  with  it  both  '  the  right 
and  the  remedy.'     Wolf  v.  Oxholm^  6  Maule  &  Selwyn,  92.  *  *  * 


CHAP.    II.]  HANGER   V.    ABBOTT.  50,3 

"  Old  decisions,  made  when  tlie  rule  of  law  was  that  war  annulled 
all  debts  between  the  subjects  of  the  belligerents,  are  entitled  to  but 
little  weight,  even  if  it  is  safe  to  assume  that  they  are  correctly 
reported,  of  which,  in  respect  to  the  leading  case  of  Prideaux  v.  Webber^ 
I  Levinz,  31,  there  is  much  doubt.  Miller  v,  Prideaux,  1  Keble,  157  ; 
Lee  v.Poffers,  1  Levinz,  110 ;  Hall  v.  Wi/bouj-ne,  2  Salked.,  420 ;  Aubrei/ 
V.  Fortescue,  10  jModern,  205,  are  of  the  same  class,  and  to  the  same 
effect.  All  of  those  decisions  were  made  between  parties  who  were 
citizens  of  the  same  jurisdiction,  and  most  of  them  were  made  nearly 
a  hundred  years  before  the  international  rule  was  acknowledged,  that 
war  only  suspended  deljts  due  to  an  enemy,  and  that  peace  had  the 
effect  to  restore  the  remedy.  The  rule  of  the  present  day  is,  that 
debts  existing  prior  to  the  war,  but  which  made  no  part  of  the 
reasons  for  undertaking  it,  remain  entire,  and  the  remedies  are 
revived  with  the  restoration  of  peace.  *  *  * 

"  Text  writers  usually  say,  on  the  authority  of  the  old  cases  re- 
ferred to,  that  the  non-existence  of  courts,  or  their  being  shut,  is  no 
answer  to  the  bar  of  the  statute  of  limitations,  but  Plowden  says 
that  things  happening  by  an  invincil)le  necessity,  though  they  be 
against  common  law,  or  an  act  of  Parliament,  shall  not  be  prejudicial, 
that,  therefore,  to  say  that  the  courts  were  shut,  is  a,  good  excuse  on 
voucher  of  record.  Exceptions  not  mentioned  in  the  statutes  have 
sometimes  been  admitted,  and  this  court  held  that  the  time  which 
elapsed  while  certain  prior  proceedings  were  suspended  by  appeal, 
should  be  deducted,  as  it  appeared  that  the  injured  party  in  the 
meantime  had  no  right  to  demand  his  money,  or  to  sue  for  the  recov- 
ery of  the  same ;  and  in  view  of  those  circumstances,  the  court  de- 
cided tliat  his  right  of  action  had  not  accrued  so  as  to  bar  it,  although 
not  commenced  within  six  years.  Montgomery  v.  Hernandez^  12 
Wheaton,  129. 

"  But  the  exception  set  up  in  this  case  stands  upon  much  more  solid 
reasons,  as  the  right  to  sue  was  suspended  by  the  acts  of  the  govern- 
ment, for  which  all  the  citizens  are  responsible.  Unless  the  rule  be 
so,  then  the  citizens  of  a  state  may  pay  their  debts  by  entering  into 
an  insurrection  or  rebellion  against  the  government  of  the  Union,  if 
they  are  able  to  close  the  courts,  and  to  successfully  resist  the  laws, 
until  the  bar  of  the  statute  becomes  complete,  which  cannot  for  a 
moment  be  admitted.  Peace  restores  the  right  and  the  remedy,  and 
as  that  cannot  be  if  the  limitation  continues  to  run  during  the  period 
the  creditor  is  rendered  incapable  to  sue,  it  necessarily  follows  that 
the  operation  of  the  statute  is  also  suspended  during  the  same  period. 

"Judgment  affirmed  with  costs."  ^ 

1  Sfmmes  v.  Hartford  Ins.  Cu.,  1871,  13  Wallace,  158;  and  Brown  v.  Iliatls,  1870, 
1  Dill.  372.     Tliis  latter  was  reversed  hy  Supreme  Court  (16  Wall.  177)  on  a  question 


504  EFFECTS    OF   WAR    AS   BETWEEN   EXE^HES.       [PART  II. 

GKISWOLD   V.    WADDIXGTON. 

Court  of  Erkors  of  New  York,  1819. 

(10  Johnson's  Report,  438.) 

Before  the  breaking  out  of  the  war  between  the  United  States  and 
England,  in  1812,  Joshua  Waddington,  an  American  citizen  residing 
in  New  York,  and  Henry  Waddington,  a  British  subject  residing  in 
London,  were  partners  in  a  commercial  bi^siness.  During  the  war, 
N.  L.  and  G.  Griswold  had  transactions  with  J.  Waddington,  in  the 
United  States.  After  the  close  of  the  war,  the  Griswolds  sued  to 
recover  a  balance  of  account  arising  out  of  those  transactions;  and 
their  contention  was  that  H.  Waddington,  the  London  partner,  was 
liable  for  the  debt.^ 

The  Chancellor  '■^  [Kext].  — 

"  It  appears  to  me,  that  the  declaration  of  war  did,  of  itself  work 
a  dissolution  of  all  commercial  partnerships  existing  at  the  time  be- 
tween British  subjects  and  American  citizens. 

"By  dealing  with  either  party,  no  third  person  could  acquire  a 
legal  right  against  the  other,  because  one  alien  enemy  cannot,  in  that 
capacity,  make  a  private  contract  binding  upon  the  other.  This  con- 
clusion would  seem  to  be  an  inevitable  result  from  the  new  relations 
created  by  the  war.  It  is  a  necessary  consequence  of  the  other  prop- 
osition, that  it  is  unlawful  to  have  communication  or  trade  with  an 
enemy.  To  suppose  a  commercial  partnersliip  (such  as  this  was)  to 
be  continued,  and  recognized  by  law  as  subsisting,  when  the  same  law 
had  severed  the  subjects  of  the  two  countries,  and  dechared  them 
enemies  to  each  other,  is  to  suppose  the  law  chargeable  with  hicon- 
sistency  and  absurdity.  For  what  use  or  purpose  could  the  law 
uphold  such  a  connection,  when  all  further  intercourse,  communica- 
tion, negotiation,  or  dealing  between  the  partners,  was  prohibited,  as 
unlawful?  ^Vhy  preserve  the  skeleton  of  the  firm,  when  tlie  sense 
and  spirit  of  it  has  fled,  and  when  the  execution  of  any  one  article  of 

of  fact,  not  of  law,  and  the  case  as  reported  in  1  Dill.  372  is  an  admirable  statement 
and  e.x position  of  the  law  on  this  subject.  See,  also,  Steiairt  v.  Kalm,  1870,  11  Wall. 
493,  holding  that  an  act  of  Congress  providing  a  statute  of  limitations  is  constitutional 
and  binding  on  State  as  well  as  Federal  courts;  Levy  v.  Stewart,  1870,  11  Wall.  244. 
In  O'Xeal  v.  Boone,  1869,  53  111.  35,  it  was  held  tliat  tlie  benefit  of  the  Statute  of  Limi- 
tations did  not  accrue  to  a  citizen  of  a  loyal  State  wlio  voluntarily  crossed  and  resided 
witiiin  Confederate  lines.  —  Ed. 

1  Short  statement  substituted  for  that  of  the  report. — Ed. 

2  Only  parts  of  the  opinion  of  the  learned  Chancellor  are  given.  — Ed. 


CHAP.  II.]  GRISWOLD   V.    WADDINGTON.  505 

it  bj^  either,  would  be  a  breach  of  liis  allegiance  to  his  country  ?  In 
short,  it  must  be  obvious  to  every  one,  that  a  state  of  war  creates 
disabilities,  imposes  restraints,  and  exacts  duties  altogether  incon- 
sistent with  the  continuance  of  that  relation.  Why  does  war  dissolve 
a  charter-party,  or  a  commercial  contract  for  a  particular  voyage? 
Because,  says  Valin,  (tom.  1  p.  6'iG,)  the  war  imposes  an  insurmount- 
able obstacle  to  the  accomplishment  of  the  contract;  and  this  obsta- 
cle arising  from  a  cause  beyond  the  control  of  the  party,  it  is  very 
natural,  he  observes,  that  the  charter-party  should  be  dissolved,  as 
of  course.  Why  should  the  contract  of  partnership  continue  by  law 
when  equally  invincible  obstacles  are  created  by  law  to  defeat  it  ?  If 
one  alien  enemy  can  go  and  bind  his  hostile  partner,  by  contracts  in 
time  of  war,  when  the  other  can  have  no  agency,  consultation,  or  con- 
trol concerning  them,  the  law  would  be  as  imjust  as  it  would  be 
extravagant.  The  good  sense  of  the  thing  as  applicable  to  this  sub- 
ject, is  the  rule  prescribed  by  the  Roman  law,  that  a  copartnersliip 
in  any  business  ceased  when  there  was  an  end  put  to  the  business 
itself.  Item  si  alicujus  rei  societas  sit,  etjinis  negotio  impo situs  est, 
jilaitur  societas.     (Inst.  3,  26,  6.) 

"  The  doctrine,  that  war  does  not  interfere  with  private  contracts, 
is  not  to  be  carried  to  an  extent  inconsistent  with  the  rights  of  Avar. 

"  Suppose  that  11.  &  J.  W.  had  entered  into  a  contract  before  the 
war,  which  was  to  continue  until  1814,  by  which  one  of  them  Avas  to 
ship,  half  yearly,  to  London,  consigned  to  the  other,  a  cargo  of  pro- 
visions, and  the  other,  in  return,  to  ship  to  Xew  York  a  cargo  of 
goods.  The  war  Avhich  broke  out  hi  1812,  would  surely  have  put  an 
end  to  the  further  operation  of  this  contract,  lawful  and  innocent  as 
it  was  when  made.  Xo  j^erson  could  raise  a  doubt  on  this  point ; 
and  what  sanctity  or  magic  is  there  in  a  contract  of  copartnership, 
that  it  must  not  yield  to  the  same  poAver  ? 

"If  we  examine,  more  particularly,  the  nature  and  objects  of  com- 
mercial partnerships,  it  would  seem  to  be  contrary  to  all  the  rules 
by  which  they  are  to  be  construed  and  governed,  that  they  should 
eontmue  to  exist,  after  the  parties  are  interdicted  by  the  govern- 
ment, from  any  communication  with  each  other,  and  are  placed  in  a 
state  of  absolute  hostility.  It  is  of  the  essence  of  the  contract  that 
each  party  should  contribute  something  valuable,  as  money,  or 
goods,  or  skill  and  labor  on  joint  account,  and  for  the  common 
benefit;  and  that  the  object  of  the  partnership  should  be  lawful, 
and  honest  business. 

"  But  how  can  the  partners  have  any  unity  of  interest,  or  any 
joint  object  that  is  laAvful,  Avhen  their  pursuits,  in  consequence  of 
the  war,  and  in  consequence  of  the  separate  allegiance  which  each 
owes  to  his  oavu  government,  must  be  mutually  hostile  ? 


506  EFFECTS   OF   WAR   AS   BETWEEN   ENEMIES.       [PART  II. 

"  The  commercial  business  of  each  country,  and  of  all  its  people, 
is  an  object  of  attack,  and  of  destruction  to  the  other.  One  party 
]nay  be  engaged  in  privateering,  or  in  supplying  the  fleets  and  armies 
of  his  country  with  provisions,  or  with  munitions  of  war  ;  and  can 
the  law  recognize  the  other  partner  as  having  a  joint  interest  in  the 
profits  of  such  business  ?  It  would  be  impossible  for  the  one  partner 
to  be  concerned  in  any  commercial  business,  which  was  not  auxiliary 
to  the  resources  and  efforts  of  his  country  in  a  maritime  war.  And 
shall  the  other  partner  be  lawfully  drawing  a  revenue  from  such 
employment  of  capital,  and  such  personal  services  directed  against 
his  own  country  ?  We  cannot  contemplate  such  a  confusion  of  obli- 
gation between  the  law  of  partnership  and  the  law  of  war,  or  such  a 
conflict  between  his  interest  as  a  partner,  and  his  duty  as  a  patriot, 
without  a  mixture  of  astonishment  and  dread.  Shall  it  be  said  that 
the  partnership  must  be  deemed  to  be  abridged  during  war,  to  busi- 
ness that  is  altogether  innoxious  and  harmless  ? 

"  But  I  would  ask,  how  can  we  cut  down  a  partnership  in  that 
manner,  without  destroying  it  ?  The  vei"y  object  of  the  partnership, 
in  this  case,  was,  no  doubt,  commercial  business  between  England 
and  the  United  States,  and  which  the  hostile  state  of  the  two  coun- 
tries interdicted ;  or  it  may  have  been  business  in  w^hich  the  personal 
communication  and  advice  of  each  partner  was  deemed  essential,  and 
without  which  the  partnership  would  not  have  been  formed.  It  is 
one  of  the  principles  of  the  law  of  partnership,  that  it  is  dissolved 
by  the  death  of  anyone  of  its  members,  however  numerous  the  asso- 
ciation may  be ;  and  the  reason  is  this ;  the  personal  qualities  of 
each  partner  enter  into  the  consideration  of  the  contract,  and  the 
survivors  ought  not  to  be  held  bound  without  a  new  assent,  when 
perhaps,  the  character  of  the  deceased  partner  was  the  inducement 
to  the  connection. 

"  Shall  we  say  that  the  partnership  continues  during  war,  in  a 
quiescent  state,  and  that  the  hostile  partners  do  not  share  in  each 
other's  j)rofits,  made  in  carrying  on  the  hostile  commerce  of  each 
country  ? 

"It  would  be  then  most  unjust  to  make  the  party  who  did  not 
share  in  profit  to  share  in  loss,  and  to  be  bound  by  the  other's  con- 
tracts ;  but  if  one  partner  does  not  share  in  profit,  that  alone  de- 
stroys a  partnership.  It  would  be  what  the  Roman  lawyers  called 
Societas  leonina,  in  allusion  to  the  fable  of  the  lion,  who,  having 
entered  into  a  partnership  with  the  other  animals  of  the  forest  in 
hunting,  appropriated  to  himself  all  the  prey. 

"It  is  one  of  the  fundamental  principles  of  every  commercial 
partnership,  that  each  partner  has  the  power  to  buy  and  sell  and 


CHAP.  II.]  GRISWOLD   V.   WADDINGTON.  507 

pay  and  receive,  and  to  contract  and  bind  the  firm.  But  then,  again, 
as  a  necessary  check  to  tliis  power,  eacli  partner  can  interfere  and 
stop  any  contract  about  to  be  made  by  any  one  of  tlie  rest.  This 
is  an  elementary  rule,  derived  from  tlie  civil  law.  In  re  pari 
potiorenx  caiisam  esse  prohibentis  constat.  (Pothier,  Trait,  du  Cont. 
sec.  n.  90.) 

"  But  if  the  partnership  continues  in  war  between  hostile  asso- 
ciates, this  salutary  power  is  withdrawn,  and  each  partner  is  left 
defenceless.  If  the  law  continues  the  connection,  after  it  has  de- 
stroyed the  check,  the  law  is  then  cruel  and  unjust. 

"In  speaking  of  the  dissolution  of  partnerships,  the  French  and 
civil  law  writers  say,  that  partnerships  are  dissolved  by  a  change  of 
the  condition  of  one  of  the  parties  which  disables  him  to  perform  his 
part  of  the  duty,  as  by  a  loss  of  liberty,  or  banishment,  or  bank- 
ruptcy, or  a  judicial  prohibition  to  execute  his  business,  or  by  confis- 
cation of  his  goods. 

"  The  English  law  of  partnership  is  derived  from  the  same  source  ; 
and  as  the  cases  arise,  the  same  pi'inciples  are  applied.  The  princi- 
ple here  is,  that  when  one  of  the  parties  becomes  disabled  to  act, 
or  when  the  business  of  the  association  becomes  impracticable,  the 
law,  as  well  as  common  reason,  adjudges  the  partnership  to  be  dis- 
solved. *  *  * 

"Another  objection  was  raised,  from  the  want  of  notice  of  the 
dissolution  of  the  partnership.  The  answer  to  this  is  extremely 
easy,  and  perfectly  conclusive.  Notice  is  requisite  when  a  partner- 
ship is  dissolved  by  the  act  of  the  parties,  but  it  is  not  necessary 
wiien  the  dissolution  takes  place,  by  the  act  of  the  laws.  The 
declaration  of  war,  from  the  time  it  was  duly  made  known  to  the 
nations,  put  an  end  to  all  future  dealings  between  the  subjects  and 
citizens  of  the  two  countries,  and,  consequently,  to  the  future  opera- 
tion of  the  copartnership  in  question. 

"  The  declaration  of  war  was,  of  itself,  the  most  authentic  and 
monitory  notice.  Any  other  notice,  in  a  case  like  this,  between  two 
public  enemies,  who  had  each  his  domicil  in  his  own  country,  would 
have  been  useless.  All  mankind  were  bound  to  take  notice,  of  the 
war,  and  of  its  consequence.  The  notice,  if  given,  could  only  be 
given  by  each  partner  in  his  own  country ;  and  there  it  would  be 
useless,  as  his  countrymen  could  not  hold  any  lawful  intercourse 
with  the  enemy.  It  could  not  be  given  as  a  joint  act,  for  the 
partners  cannot  lawfully  commune  together. 

"  But,  it  was  said,  that  the  peace  had  a  healing  influence,  and 
restored  the  parties  to  all  their  rights,  and  arrested  all  confiscations, 
and  forfeitures,  which  had  not  previously  and  duly  attached.    I  do 


508  EFFECTS   OF   WAR   AS   BETWEEN   ENEMIES.       [PART  II. 

not  know  that  I  differ  from  the  counsel  in  any  just  application  of 
this  doctrine. 

"  As  far  as  the  war  suspended  the  right  of  action  existing  in  the 
adverse  party  prior  to  the  war,  that  right  revived ;  but  if  the  contract 
in  this  case  was  unlawful,  peace  could  not  revive  it,  for  it  never  had 
any  legal  existence.  So,  too,  the  copartnership  being  once  dissolved 
by  the  war,  it  was  extinguished  forever,  except  as  to  matters  exist- 
ing prior  to  the  war." 


MATTHEWS   v.   McSTEA. 
Supreme  Court  of  the  United  States,  1875. 

(01  United  States,  7.) 

Mr.  Justice  StrOn'g  delivered  the  opinion  of  the  court. 

The  single  question  which  this  record  presents  for  our  considera- 
tion is,  "Whether  a  partnership,  where  one  member  of  the  firm  resided 
in  New  York  and  the  others  in  Louisiana,  was  dissolved  by  the  war 
of  the  rebellion  prior  to  April  23,  1861. 

That  the  civil  war  had  an  existence  commencing  before  that  date 
must  be  accepted  as  an  established  far-t.  This  was  fully  determined 
in  The  Prize  Cases,  2  Black,  635;  and  it  is  no  longer  open  to  denial. 
The  President's  proclamation  of  April  19,  1861,  declaring  that  he  had 
deemed  it  advisable  to  set  on  foot  a  blockade  of  the  ports  within  the 
States  of  South  Carolina,  Georgia,  Alabama,  Elorida,  Mississippi, 
Louisiana,  and  Texas,  was  a  recognition  of  a  war  waged,  and  conclu- 
sive evidence  that  a  state  of  war  existed  between  the  people  inhabit- 
ing those  States  and  the  United  States. 

It  must  also  be  conceded,  as  a  general  rule,  to  be  one  of  the  imme- 
diate consequences  of  a  declaration  of  war  and  the  eifect  of  a  state  of 
war,  even  when  not  declared,  that  all  commercial  intercourse  and 
dealing  between  the  subjects  or  adherents  of  the  contending  powers  is 
unlawful,  and  is  interdicted.  The  reasons  for  this  rule  are  obvious. 
They  are,  that,  in  a  state  of  war,  all  the  members  of  each  belligerent 
are  respectively  enemies  of  all  the  members  of  the  other  belligerent; 
and,  were  commercial  intercourse  allowed,  it  would  tend  to  strengthen 
the  enemy,  and  afford  facilities  for  conveying  intelligence,  and  even 
for  traitorous  correspondence.  Hence  it  has  become  an  established 
doctrine,  that  war  puts  an  end  to  all  commercial  dealing  between  the 
citizens  or  subjects  of  the  nations  or  powers  at  war,  and  "places  every 
individual  of  the  respective  governments,  as  well  as  the  governments 


CHAr.  II.]  MATTHEWS    V.    McSTEA.  509 

themselves,  in  a  state  of  hostility :  "  and  it  dissolves  commercial  part- 
nerships existing  between  the  subjects  or  citizens  of  the  two  contend- 
ing parties  prior  to  the  war;  for  their  continued  existence  would 
involve  community  of  interest  and  mutual  dealing  between  enemies. 

Still  further,  it  is  undeniable  that  civil  war  brings  with  it  all  the 
consequences  in  this  regard  which  attend  upon  and  follow  a  state 
of  foreign  war.  Certainly  this  is  so  when  civil  war  is  sectional. 
Equally  wath  foreign  war,  it  renders  commercial  intercourse  un- 
lawful between  the  contending  parties,  and  it  dissolves  commercial 
partnerships. 

But,  while  all  this  is  true  as  a  general  rule,  it  is  not  without  ex- 
ceptions. A  state  of  war  may  exist,  and  yet  commercial  intercourse 
be  lawful.  They  are  not  necessarily  inconsistent  with  each  other. 
Trading  with  a  public  enemy  may  be  authorized  by  the  sovereign, 
and  even,  to  a  limited  extent,  by  a  military  commander.  Such  per- 
missions or  licenses  are  partial  suspensions  of  the  laws  of  war,  but 
not  of  the  war  itself.  In  modern  times,  they  are  very  common. 
Bynkershoek,  in  his  Qusest.  Jur.  Pub.,  lib.  1,  c.  3,  while  asserting  as 
a  universal  principle  of  law  that  an  immediate  consequence  of  the 
commencement  of  war  is  the  interdiction  of  all  commercial  intercourse 
between  the  subjects  of  the  states  at  war,  remarks:  "The  utility, 
however,  of  merchants,  and  the  mutual  wants  of  nations,  have  almost 
got  the  better  of  the  laws  of  war  as  to  commerce.  Hence  it  is  alter- 
natively permitted  and  forbidden  in  time  of  war,  as  princes  think  it 
most  for  the  interests  of  their  subjects.  A  commercial  nation  is 
anxious  to  trade,  and  accommodates  the  laws  of  war  to  the  greater  or 
lesser  want  that  it  may  be  in  of  the  goods  of  others.  Thus  sometimes 
a  mutual  commerce  is  permitted  generally;  sometimes  as  to  certain 
merchandise  only,  while  others  are  prohibited;  and  sometimes  it  is 
prohibited  altogether."  Halleck,  in  his  "Treatise  on  the  Laws  of 
War,"  p.  676  et  seq.,  discusses  this  subject  at  considerable  length, 
and  remarks:  "That  branch  of  the  government  to  which,  from  the 
form  of  its  constitution,  the  power  of  declaring  or  making  war  is 
intrusted,  has  an  undoubted  right  to  regulate  and  modify,  in  its  dis- 
cretion, the  hostilities  which  it  sanctions.  *  *  *  In  England,  licenses 
are  granted  directly  by  the  crown,  or  by  some  subordinate  officer  to 
whom  the  authority  of  the  crown  has  been  delegated,  either  by  special 
instructions,  or  under  an  act  of  Parliament.  In  the  United  States, 
as  a  general  rule,  licenses  are  issued  under  the  authority  of  an  act  of 
Congress;  but  in  special  cases  and  for  purposes  immediately  con- 
nected with  the  prosecution  of  the  v»'ar,  they  may  be  granted  by  the 
auLliority  of  the  President,  as  commander-in-chief  of  the  military  and 
uaval  forces  of  the  United  States. 


510  EFFECTS   OF   WAR   AS   BETWEEN   ENEMIES.      [PART  II. 

It  being,  then,  settled  that  a  war  may  exist,  and  yet  that  trading 
with  the  enemy,  or  commercial  intercourse,  may  be  allowable,  we  are 
brought  to  inquire  whether  such  intercourse  was  allowed  between  the 
loyal  citizens  of  the  United  States  and  the  citizens  of  Louisiana  until 
the  23d  of  April,  1861,  when  the  acceptance  was  made  upon  which 
this  suit  was  brought.  And,  in  determining  this,  the  character  of 
the  war  and  the  manner  in  which  it  was  commenced  ought  not  to  be 
overlooked.  No  declaration  of  war  was  ever  made.  The  President 
recognized  its  existence  by  proclaiming  a  blockade  on  the  19th  of 
April;  and  it  then  became  his  duty  as  well  as  his  right  to  direct  how 
it  should  be  carried  on.  In  the  exercise  of  this  right,  he  was  at 
liberty  to  allow  or  license  intercourse;  and  his  proclamations,  if  they 
did  not  license  it  expressly,  did,  in  our  opinion,  license  it  by  very 
cogent  implications.  It  is  impossible  to  read  them  without  a  con- 
viction that  no  interdiction  of  commercial  intercourse,  except  through 
the  ports  of  the  designated  States,  was  intended.  The  first  was  that 
of  April  15,  1861.  The  forts  and  property  of  the  United  States  had, 
prior  to  that  day,  been  forcibly  seized  by  armed  forces.  Hostilities 
had  commenced;  and,  in  the  light  of  subsequent  events,  it  must  be 
considered  that  a  state  of  war  then  existed.  Yet  the  proclamation, 
while  calling  for  the  militia  of  the  several  States,  and  stating  what 
would  probably, be  the  first  service  assigned  to  them,  expressly  de- 
clared that,  "  in  every  event,  the  utmost  care  would  be  observed, 
consistently  with  the  repossession  of  the  forts,  places,  and  property 
which  had  been  seized  from  the  Union,  to  avoid  any  devastation, 
destruction  of  or  interference  with  property,  or  any  disturbance  of 
peaceful  citizens  in  any  part  of  the  country."  Manifestly,  this  dec- 
laration was  not  a  mere  military  order.  It  did  not  contemplate  the 
treatment  of  the  inhabitants  of  the  States  in  which  the  unlawful  com- 
binations mentioned  in  the  proclamation  existed  as  public  enemies. 
It  announced  a  different  mode  of  treatment,  — the  treatment  due  to 
friends.  It  is  to  be  observed  that  the  proclamation  of  April  15,  1861, 
was  not  a  distinct  recognition  of  an  existing  state  of  war.  The  Presi- 
dent had  power  to  recognize  it.  The  Prize  Cases,  svpra  ;  but  he  did 
not  ])rior  to  his  second  proclamation,  that  of  April  19,  in  which  he 
announced  the  blockade.  Even  then  the  war  was  only  inferentially 
recognized;  and  the  measures  proposed  were  avowed  to  be  "with  a 
view  to  *  *  *  tlie  protection  of  the  public  peace  and  the  lives  and 
property  of  quiet  and  orderly  citizens  pursuing  their  lawful  occupa- 
tions, until  Congress  shall  have  assembled."  The  reference  here  was 
]^laiiily  to  citizens  of  the  insurrectionary  States;  and  the  purpose 
avowed  appears  to  be  inconsistent  with  their  being  regarded  as  public 
enemies,  and  consequently  debarred  from  intercourse  with  the  inhabi- 


CHAP.  II.]  MATTHEWS   V.   McSTEA.  511 

tauts  of  States  not  in  insurrection.  The  only  interference  with  the 
business  relations  of  citizens  in  all  parts  of  the  country,  contemplated 
by  the  proclamation,  seems  to  have  been  such  as  the  blockade  might 
cause.  And  that  it  was  understood  to  be  an  assent  by  the  executive 
to  continued  business  intercourse  may  be  inferred  from  the  subsequent 
action  of  the  government  (of  which  we  may  take  judicial  notice)  in 
continuing  the  mail  service  in  Louisiana  and  the  other  insurrectionary 
States  long  after  the  blockade  was  declared.  If  it  was  not  such  an 
assent  or  permission,  it  was  well  fitted  to  deceive  the  public.  But  in 
a  civil  more  than  in  a  foreign  war,  or  a  war  declared,  it  is  important 
that  unet^uivocal  notice  should  be  given  of  the  illegality  of  traffic  or 
commercial  intercourse;  for,  in  a  civil  war,  only  the  government  can 
know  when  the  insurrection  has  assumed  the  character  of  war. 

If,  however,  the  proclamations,  considered  by  themselves,  leave  it 
doubtful  whether  they  were  intended  to  be  permissive  of  commercial 
intercourse  with  the  inhabitants  of  the  insurrectionary  States,  so  far 
as  such  intercourse  did  not  interfere  with  the  blockade  the  subse- 
quent act  of  Congress,  passed  on  the  thirteenth  day  of  July,  1861, 
ought  to  put  doubt  at  rest. 

The  act  was  manifestly  passed  in  view  of  the  state  of  the  country 
then  existing,  and  in  view  of  the  proclamation  the  President  had 
issued.  It  enacts  that,  in  a  case  therein  described,  a  case  that  then 
existed,  "  it  may  and  shall  be  lawful  for  the  President,  by  proclama- 
tion, to  declare  that  the  inhabitants  of  such  State,  or  any  section  or 
part  thereof  where  such  insurrection  exists,  are  in  a  state  of  insurrec- 
tion against  the  United  States;  and  thereupon  all  commercial  inter- 
course by  and  between  the  same  and  the  citizens  thereof,  and  the 
citizens  of  the  rest  of  the  United  States,  shall  cease  and  be  unlawful 
so  long  as  such  condition  of  hostility  shall  continue."  Under  au- 
thority of  this  act,  the  President  did  issue  such  a  proclamation  on  the 
16th  of  August,  1861;  and  it  stated  that  all  commercial  intercourse 
between  the  States  designated  as  in  insurrection  and  the  inhabitants 
thereof,  with  certain  exceptions,  and  the  citizens  of  other  States  and 
other  parts  of  the  United  States,  was  unlawful.  Both  the  act  and 
the  proclamation  exhibit  a  clear  implication  that,  before  the  first  was 
enacted  and  the  second  was  issued,  commercial  intercourse  was  not 
unlawful;  that  it  had  been  permitted.  What  need  of  declaring  it 
should  cease,  if  it  had  ceased,  or  had  been  unlawful  before?  The 
enactment  that  it  should  not  be  permitted  after  a  day  then  in  the 
future  must  be  considered  an  implied  affirmation  that  up  to  that  day 
it  was  lawful;  and  certainly  Congress  had  the  power  to  relax  any  of 
the  ordinary  rules  of  war. 

We  think,  therefore,  the  Court  of  Appeals  was  right  in  holding 


512  "     EFFECTS    OF   WAR   AS   BETWEEN    ENEMIES.       [PART  II. 

that  the  partnership  of  Brander,  Chambliss  &  Co.  had  not  been  dis- 
solved by  the  war,  wlien  the  acceptance  upon  which  the  plaintiff  in 

error  is  sued  was  made. 

The  judgment  is  affirmed. 


NEW  YORK   LIFE   INS.    CO.    v.    STATHEM. 

SAME   V.    SEYMS. 

MANHATTAN    LIFE    INS.    CO.    t.    BUCK,    Executor. 

Supreme  Court  of  the  United  States,  1876. 

(93  United  States,  24.) 

The  first  of  these  cases  is  here  on  appeal  from,  and  the  second 
and  third  on  writs  of  error  to,  the  Circuit  Court  of  the  United 
States  for  the  Southern  District  of  Mississippi. 

The  first  case  is  a  bill  in  equity,  filed  to  recover  the  amount  of  a 
policy  of  life  assurance,  granted  by  the  defendant  (now  appellant) 
in  18.51,  on  the  life  of  Dr.  A.  D.  Stathem,  of  Mississippi,  from  the 
proceeds  of  certain  funds  belonging  to  the  defendant  attached  in 
the  hands  of  its  agent  at  Jackson,  in  that  State.  It  appears  from 
the  statements  of  the  bill  that  the  annual  premiums  accruing  on  the 
policy  were  all  regularly  paid,  until  the  breaking  out  of  the  late 
civil  war,  but  that,  in  consequence  of  that  event,  the  premium  due 
on  the  8th  of  December,  1861,  was  not  paid  ;  the  parties  assured 
being  residents  of  Mississippi,  and  the  defendant  a  corporation  of 
New  York.     Dr.  Stathem  died  in  July,  1862. 

The  other  cases  are  similar. 

Each  policy  contained  various  conditions,  upon  the  breach  of 
which  it  was  to  be  null  and  void ;  and  amongst  others  the  following : 
"  That  in  case  the  said  (assured)  shall  not  pay  the  said  premium  on 
or  before  the  several  days  hereinbefore  mentioned  for  the  payment 
thereof,  then  and  in  every  such  case  the  said  company  shall  not  be 
liable  to  the  payment  of  the  sum  insured,  or  in  any  part  thereof, 
and  this  policy  shall  cease  and  determine." 

The  Manhattan  policy  contained  the  additional  provision,  that,  in 
every  case  where  the  policy  should  cease  or  become  null  and  void, 
all  previous  payments  made  thereon  should  be  forfeited  to  the  com- 
pany. 

The  non-payment  of  the  premiums  in  arrear  was  set  up  in  bar  of 
the  actions ;  and  the  plaintiffs  respectively  relied  on  the  existence 


CHAP.  TI.]        NEW    YORK    LIFE   INS.    CO.    V.    STATHEM.  513 

of  the  war  as  an  excuse,  offering  to  deduct  the  premiums  in  arrear 
from  the  amounts  of  the  policies. 

The  decree  and  judgments  below  were  against  the  defendants. 

Mr.  Justice  Bradley,  after  stating  the  case,  delivered  the  opinion 
of  the  court. 

"  We  agree  with  the  court  below,  that  the  contract  is  not  an 
assurance  for  a  single  year,  with  a  privilege  of  renewal  from  year  to 
year  by  paying  the  annual  premium,  but  that  it  is  an  entire  con- 
tract of  assurance  for  life,  subject  to  discontinuance  and  forfeiture 
for  non-payment  of  any  of  the  stipulated  premiums.  Such  is  the 
form  of  the  contract,  and  such  is  its  character.  *  *  * 

"  Each  instalment  is,  m  fact,  part  consideration  of  the  entire  in- 
surance for  life.  It  is  the  same  thing,  where  the  annual  premiums 
are  spread  over  the  whole  life.  *  *  * 

"  The  case,  therefore,  is  one  in  which  time  is  material  and  of  the 
essence  of  the  contract.  Xon-payment  at  the  day  involves  absolute 
forfeiture,  if  such  be  the  terms  of  the  contract,  as  is  the  case  here. 
Courts  cannot  with  safety  vary  the  stipulation  of  the  parties  by  in- 
troducing equities  for  the  relief  of  the  insured  against  their  own 
negligence. 

"  But  the  court  below  bases  its  decision  on  the  assumption  that, 
when  performance  of  the  condition  becomes  illegal  in  consequence  of 
the  prevalence  of  public  war,  it  is  excused,  and  forfeiture  does  not 
ensue.  It  supposes  the  contract  to  have  been  suspended  during  the 
war,  and  to  have  revived  with  all  its  force  when  the  war  ended. 

"  Such  a  suspension  and  revival  do  take  place  in  the  case  of  ordi- 
nary debts.  But  have  they  ever  been  known  to  take  place  in  the 
case  of  executory  contracts  in  which  time  is  material  ?  If  a  Texas 
merchant  had  contracted  to  furnish  some  Northern  explorer  a  thou- 
sand cans  of  preserved  meat  by  a  certain  day,  so  as  to  be  ready  for 
his  departure  for  the  North  Pole,  and  was  prevented  from  furnish- 
ing it  by  the  civil  war,  would  the  contract  still  be  good  at  the  close 
of  the  war  five  years  afterwards,  and  after  the  return  of  the  ex- 
pedition ? 

"  If  the  proprietor  of  a  Tennessee  quarry  had  agreed,  in  1860,  to 
furnish,  during  the  two  following  years,  ten  thousand  cubic  feet  of 
marble,  for  the  construction  of  a  building  in  Cincinnati,  could  he 
have  claimed  to  perform  the  contract  in  1865,  on  the  ground  that 
the  war  prevented  an  earlier  performance  ? 

"  The  truth  is,  that  the  doctrine  of  tli^  revival  of  contracts  sus- 
pended during  the  war  is  one  based  on  considerations  of  equity  and 
justice,  and  cannot  be  invoked  to  revive  a  contract  which  it  would 
be  unjust  or  inequitable  to  revive. 

83 


514  EFFECTS    OF   WAR   AS   BETWEEN   ENEMIES.       [PART  II. 

"  In  the  case  of  life  insurance,  besides  the  materiality  of  time  in 
the  performance  of  the  contract,  another  strong  reason  exists  why 
the  policy  should  not  he  revived.  The  parties  do  not  stand  on 
equal  ground  in  reference  to  such  a  revival. 

"It  would  operate  most  unjustly  against  the  company.  The 
business  of  insurance  is  founded  on  the  law  of  averages ;  that  of 
life  insurance  eminently  so.  The  average  rate  of  mortality  is  the 
basis  on  which  it  rests.  By  spreading  their  risks  over  a  large  num- 
ber of  cases,  the  companies  calculate  on  this  average  with  reasonable 
certainty  and  safety.  Anything  that  interferes  with  it  deranges  the 
security  of  the  business.  If  every  policy  lapsed  by  reason  of  the 
war  should  be  revived,  and  all  the  back  premiums  should  be  paid, 
the  companies  would  have  the  benefit  of  this  average  amount  of 
risk. 

"  But  the  good  risks  are  never  heard  from  ;  only  the  bad  are  sought 
to  be  revived,  where  the  j)erson  insured  is  either  dead  or  dying. 
Those  in  health  can  get  new  policies  cheaper  than  to  paj^  arrearages 
on  the  old.  To  enforce  a  revival  of  the  bad  cases,  Avhilst  the  company 
necessarily  lose  the  cases,  which  are  desirable,  would  be  manifestly 
unjust.  An  injured  person,  as  before  stated,  does  not  stand  isolated 
and  alone,  Ilis  case  is  connected  with  and  correlated  to  the  cases  of 
all  others  insured  by  the  same  company. 

"  The  nature  of  the  business,  as  a  whole,  must  be  looked  at  to 
understand  the  general  equities  of  the  parties. 

"  We  are  of  opinion,  therefore,  that  an  action  cannot  be  maintained 
for  the  amount  assured  on  a  policy  of  life-insurance  forfeited,  like 
those  in  question,  by  non-payment  of  the  premium,  even  though  the 
payment  was  prevented  by  the  existence  of  the  war. 

"  The  question  then  arises.  Must  the  insured  lose  all  the  money 
which  has  been  paid  for  premiums  on  their  respective  policies  ?  If 
they  must,  they  will  sustain  an  equal  injustice  to  that  which  the 
companies  M^ould  sustain  by  reviving  the  policies.  At  the  very  first 
blush,  it  seems  manifest  that  justice  requires  that  they  should  have 
some  compensation  or  return  for  the  money  already  paid,  otherwise 
the  companies  would  be  the  gainers  from  their  loss  ;  and  that  from 
a  cause  for  which  neither  party  is  to  blame.  The  case  may  be 
ilhistrated  thus ;  Suppose  an  inhabitant  of  Georgia  had  bargained 
for  a  house,  situated  in  a  Northern  city,  to  be  paid  for  by  instal- 
ments, and  no  title  to  be  made  until  all  the  instalments  were  paid, 
witli  a  condition  that  on  the  failure  to  pay  any  of  the  instalments 
when  due,  the  contract  should  be  at  an  end,  and  the  previous  pay- 
ments forfeited  ;  and  suppose  that  this  condition  was  declared  by 
the  parties  to  be  absolute  and  the  time  of  payment  material.     Now, 


CHAP.  II.]         NEW    YORK   LIFE   INS.    CO.    V.   STATHEM.  515 

if  some  of  the  instalments  were  paid  before  tlie  war,  and  otliere  ac- 
cruing during-  the  war  Avere  not  paid,  tlie  contract,  as  an  executory- 
one,  was  at  an  end.  If  tlie  necessities  of  tlie  vendor  obliged  liini  to 
avail  himself  of  the  condition,  and  to  resell  the  property  to  another 
party,  would  it  be  just  for  him  to  retain  the  money  he  had  received? 
Perliaps  it  might  be  just  if  the  failure  to  pay  had  been  voluntary,  or 
could,  by  possibility,  have  been  avoided. 

"  But  it  was  caused  by  an  event  beyond  the  control  of  either  party, 
• — an  event  which  made  it  unlawful  to  pay.  In  such  case,  whilst  it 
would  be  unjust,  after  the  war,  to  enforce  the  contract  as  an  execu- 
tory one  against  the  vendor  contrary  to  his  will,  it  would  be  equally 
unjust  in  him,  treating  it  as  ended,  to  insist  upon  the  forfeiture 
of  the  money  already  paid  on  it.  An  equitable  right  to  some 
compensation  or  return  for  previous  payments  would  clearly  result 
from  the  circumstances  of  the  case.  The  money  paid  by  the  pur- 
chaser, subject  to  the  value  of  any  possession  which  he  may  have 
enjoyed,  should,  ex  cequo  et  bono,  be  returned  to  him.  This  would 
clearly  be  demanded  by  justice  and  right. 

"  And  so,  m  the  present  case,  whilst  the  insurance  company  has  a 
right  to  insist  on  the  materiality  of  time  in  the  condition  of  payment 
of  premiums,  and  to  hold  the  contract  ended  by  reason  of  non-pay- 
ment, they  cannot  with  any  fairness  insist  upon  the  condition,  as  it 
regards  the  forfeiture  of  the  premiums  already  paid ;  that  would  be 
clearly  unjust  and  inequitable.  The  insured  has  an  equitable  right 
to  have  this  amount  restored  to  him,  subject  to  a  deduction  for  the 
value  of  the  assurance  enjoyed  by  him  whilst  the  policy  was  in  ex- 
istence ;  in  other  words,  he  is  fairly  entitled  to  have  the  equitable 
value  of  his  policy.  *  *  * 

"  We  are  of  opinion,  therefore,  first,  that  as  the  companies  elected 
to  insist  upon  the  condition  in  these  cases,  the  policies  in  question 
must  be  regarded  as  extinguished  by  the  non-payment  of  the  premi- 
ums, though  caused  by  the  existence  of  the  war,  and  that  an  action 
will  not  lie  for  the  amount  insured  thereon. 

"  Secondly,  that  such  failure  being  caused  hy  a  public  war,  without 
the  fault  of  the  assured,  they  are  entitled  ex  cequo  et  bono  to  recover 
the  equitable  value  of  the  policies  with  interest  from  the  close  of  the 
war  *  *  * 

"  In  estimating  the  equitable  value  of  a  policy,  no  deduction  should 
be  made  from  the  precise,  amount  which  the  calculations  give,  as  is 
sometimes  done  where  policies  are  voluntarily  surrendered,  for  the 
purpose  of  discouraging  such  surrenders  ;  and  the  value  should  be 
taken  as  of  the  day  when  the  first  default  occurred  in  the  payment 
of  the  premium  by  which  the  policy  became  forfeited.    In  each  case 


516  EFFECTS   OF   WAR   AS   BETWEEN  ENEZ^UES.      [PAET  U. 

the  rates  of  mortality  and  interest  used  in  the  tables  of  the  company- 
will  form  the  basis  of  the  calculation. 

"  The  decree  in  the  equity  suit  and  tlie  judgments  in  the  actions 
at  law  are  reversed,  and  the  causes  respectively  remanded  to  be  pro- 
ceeded with  according  to  law  and  the  directions  of  this  opinion. 

Clifford,  J.,  (with  whom  concurred  Hunt,  J.,)  dissenting : — 
"  Where  the  parties  to  an  executory  money-contract  live  in 
different  countries,  and  the  governments  of  those  countries  become 
involved  in  public  war  with  each  other,  the  contract  between  such 
parties  is  suspended  during  the  existence  of  the  war,  and  revives 
when  peace  ensues ;  and  that  rule,  in  ray  judgment,  is  as  applicable 
to  the  contract  of  life-insurance  as  to  any  other  executory  con- 
tract. 

"  Consequently,  I  am  obliged  to  dissent  from  the  opinion  and 
judgment  of  the  court  in  these  cases."  ^ 

1  In  Xew  York  Life  Ins.  Co.  v.  Davis,  1877,  95  U.  S.  425,  the  facts  were  the  same, 
except  that  the  Insurance  Co.  had  an  agent  in  the  Confederacy  to  whom  tlie  insured,  a 
Major  in  the  Confederate  service,  vainly  tendered  the  premium  as  it  tell  due.  Under  the 
circumstances,  the  court,  following  the  principal  decision,  eaid  per  Mr.  Justice 
Bradley  :  — 

"  We  do  not  mean  to  say  that,  if  the  defendant  had  continued  its  authority  to  the 
agent  to  act  in  the  receipt  of  premiums  during  the  war,  and  he  had  done  so,  a  payment 
or  tender  to  him  in  lawful  money  of  the  United  States  would  not  have  been  valid; 
nor  that  a  stipulation  to  continue  such  authority  in  case  of  war  made  before  its  occur- 
rence would  not  have  been  a  valid  stipulation  ;  nor  that  a  policy  of  life  insurance  on 
which  no  premiums  were  to  be  paid,  though  suspended  during  the  war,  might  not  have 
revived  after  its  close.  We  place  our  decision  simply  on  the  ground  that  the  agency 
of  Garland  was  terminated  by  the  breaking  out  of  the  war,  and  that,  although  by  the 
consent  of  the  parties  it  might  have  been  continued  for  the  purpose  of  receiving  pay- 
ments of  premiums  during  tlie  war,  there  is  no  proof  that  such  assent  was  given, 
either  by  the  defendant  or  by  Garland;  but  that,  on  the  contrary,  the  proof  is  positive 
and  uncontradicted  that  Garland  declined  to  act  as  agent." 

In  the  course  of  the  opinion  the  court  considers  and  approves  the  following  authori- 
ties as  payment  to  agents  in  an  enemy's  country :  Comi  v.  Penn.,  1818,  Pet.  C.  C.  496 
(the  leading  authority)  ;  Dennison  v.  Imbrie,  1818,  3  Wash.  3fl6;  Buchanan  v.  Curri/, 
18-21,  19  Johns.  137;  Ward  v.  Smith,  1868,  7  Wall.  447;  Brown  v.  Hiatis,  1872, 
15  Wall.  177 ;  Montgomery  v.  U.  S.,  1872,  15  Wall.  395 ;  Fretz  v.  Stover,  1874, 
2-2  Wall.  198. 

In  regard  to  the  influence  of  war  on  life  insurance  policies  it  may  be  said  that  three 
essentially  distinct  views  have  been  held  by  courts  of  last  resort,  and  reference  is  made 
to  Abell  v.  Penn.  Mutual  Life  Ins.  Co.,  1881,  18  West  Va.  400,  423-435  for  their 
enumeration,  and  criticism  of  the  authorities  cited. 

In  Semmrs  v.  Hartford  Ins.  Co.,  1871,  13  Wall.  158,  the  action  was  upon  a  policy  of 
fire  insurance  containing  the  express  stipulation  that  no  suit  should  be  sustainable 
thereunder  unless  brought  within  twelve  months  after  the  loss  or  damage  occurred. 
The  civil  war  broke  out  during  the  twelve  months  within  which  the  suit  should  and 
no  doubt  would  have  been  brought.     As  it  waa  impossible  to  bring  suit  during  the  war, 


CHAP.  II.]  WARE   V.    JONES.  517 

WAEE  V.  JONES. 

SUPBEME    COUKT    OF    ALABAMA,    1878. 
(61  Alabama,  288.) 

Brickell,  C.  J.  The  instructions  given  the  jury,  and  the  first 
instruction  requested  by  the  appellant  and  refused,  involve  the  same 
question  —  the  validity  of  a  contract  made  during  the  war,  for  the 
sale  of  propert}',  real  and  personal,  the  seller  knew  the  purchaser  was 
buying,  to  be  used  in  the  making  of  iron  for  the  Confederate  States, 
to  aid  and  assist  them  in  the  prosecution  of  hostilities  against  the 
United  States.  The  question  has  been  several  times,  in  various 
forms,  presented  to  this  court,  and  with  one  exception  such  contracts 
have  been  declared  void- 
In  Shepherd  v.  Reese,  42  Ala.  320,  a  horse  was  purchased,  the  note 
given  for  the  price,  expressing  that  the  horse  was  "to  go  in  Captain 
Smith's  mounted  company,  the  horse  to  be  paid  for  as  he  draws  his 
money."  The  proof  showed  the  horse  was  purchased  for  use  in  the 
service  of  the  Confederate  States.  The  question  was,  whether  a 
recovery  could  be  had  on  the  note.  The  court  pronounced  it  void,  as 
opposed  to  the  national  policy  and  the  Constitution.  At  the  succeed- 
ing term,  in  Patton  v.  Gilmer,  42  Ala.  548,  the  facts  were  that  the 
State  of  Alabama  had  advanced  a  large  sum  of  money  to  an  associa- 
tion or  corporation,  organized  for  the  manufacture  of  arms,  upon  a 
contract  to  deliver  to  the  State,  arms  of  a  certain  number  and  descrip- 
tion, and  the  corporation  had  given  bond  for  the  performance  of  the 
contract.  The  action  was  upon  the  bond,  assigning  several  breaches 
of  the  contract,  and  it  was  held  the  action  could  not  be  maintained. 
The  principle  of  the  decision  is,  that  all  contracts  which  are  hostile 
to,  or  violative  of  the  Constitution  or  laws  of  the  United  States,  are 
invalid,  whether  made  by  individuals,  or  the  State.  And  that  though 
the  contract  was  made  during  the  war,  when  the  authority  and  laws 

tliis  condition  was  not  performed.  It  was  held  by  the  court  tliat  the  condition  was 
entire  and  not  divisible  ;  that  as  performance  became  impossible  by  operation  of  law, 
the  assured  was  entirely  released  from  the  obligation  of  bringing  suit  within  the  twelve 
months  ;  tliat  the  action  could,  therefore,  be  maintained  at  any  time  witiiin  the 
statute  of  limitations.  In  otlier  words,  war  suspends  but  does  not  extinguish  con- 
ditions of  a  contract,  so  tliat  on  the  return  of  peace  tlie  entire  conventional  stipulation 
as  regards  time  revives  as  of  right.  In  case  of  a  statutorj'  limitation  within  whicli  the 
suit  may  or  must  be  brought,  the  period  during  which  the  courts  were  closed  by 
reason  of  war  is  deducted  and  the  plaintiff  is  given  the  balance  of  time  to  bring 
the  action  whicii  the  war  prevented  him  from  doing.  See  Wambaugh,  Oases  on  In- 
surance (1902),  651,  note,  for  an  exhaustive  citation  of  adjudicated  cases.  —  Ed. 


518  EFFECTS   OF   WAR   AS   BETWEEK   ENEMIES.       [PAET  II. 

of  the  United  States  were  by  force  superseded,  and  the  authority  and 
laws  of  the  Confederate  States  were  dominant,  it  cannot  now  be 
enforced  in  the  courts  of  the  State,  bound  to  the  Constitution  of  the 
United  States,  as  the  supreme  law  of  the  land.  In  Oxford  Iron  Com- 
jjariy  v.  Quinchett,  44  Ala.  487,  a  contract  for  the  loan  or  hire  of 
mules  to  a  party,  known  at  the  time  to  be  engaged  in  the  manufacture 
of  iron  for  the  Confederate  government,  with  a  knowledge  on  the  part 
of  the  bailor  that  they  were  to  be  employed  in  the  work,  was  declared 
invalid.  In  Oxford  Iron  Company  v.  Spradley,  46  Ala.  98,  a  promis- 
sory note  given  by  a  corporation  for  the  loan  of  money,  to  be  used  in 
erecting  iron  works  and  making  iron  for  the  Confederate  government, 
if  at  the  time  of  the  loan  the  lender  knew  the  purposes  for  which  it 
was  borrowed,  was  pronounced  void.  In  Mihier  v.  Patton,  49  Ala. 
423,  the  action  was  on  an  account  for  goods  sold  and  delivered,  the 
seller  knowing  the  purchaser  intended  to  use  them  in  clothing  Con- 
federate soldiers,  and  it  was  held  the  action  was  not  maintainable. 
Opposed  to  these  cases  stands  the  case  of  Thedford  v.  McClintock, 
Al  Ala.  423,  which  was  expressly  overruled  in  the  case  of  Milner  v. 
Patton,  supra.  See,  also,  Bihh  v.  Commissioner'' s  Court,  44  Ala.  119; 
Speed  V.  Coclce,  67  Ala.  209. 

These  decisions  must  be  taken  as  settling  definitely,  and  finally, 
the  law  of  this  State,  upon  the  question  now  involved;  as  they  are 
supported  by  the  decisions  of  the  Supreme  Court  of  the  United 
States,  though  they  may  be  opposed  to  the  decisions  of  other  States, 
we  are  not  inclined  to  re-open  a  discussion  of  the  reasoning  on  which 
they  proceed.  Hanauer  v.  Poane,  12  Wall.  342;  Hanauer  v.  Wood- 
ruff, 15  Wall.  439.  The  act  of  Congress  of  August  6,  1861  (U.  S. 
Stat.  Vol.  XII,  319),  subjected  to  confiscation  property  of  any  kind 
or  description  purchased  or  acquired,  or  sold,  with  intent  to  use  or 
employ  the  same,  or  to  suffer  the  same  to  be  used  or  employed  in 
aiding  or  abetting  or  promoting  the  insurrection.  The  property  in 
this  case  was  not  only  sold  with  a  knowledge  that  it  was  to  be  so 
used,  but  the  seller  was  a  member  of  the  corporation  formed  to  pro- 
mote the  use,  and  suffered  it  to  be  used  first  in  the  completion  of  a 
contract  he  had  made  to  supply  a  contractor  with  the  Confederate 
States  with  iron  for  making  arms,  and  then  in  supplying  the  govern- 
ment itself.  Such,  at  least,  there  was  evidence  tending  to  show,  and 
it  was  in  reference  to  the  evidence  the  instructions  were  given  and 
refused.  Contracts  prohibited  by  a  statute,  even  when  a  penalty  is 
not  imposed  for  a  violation,  are  void.  McGehee  v.  Lindsay,  6  Ala. 
16.  It  is  said  this  statute  was  not  operative  in  Alabama  when  this 
contract  was  made.  l>ut  it  is  now  of  force,  and  as  obligatory  on  the 
courts  of  justice  within  the  State,  as  if  Alabama  had  then,  as  now 


CHAP.  IT.]  WARE   V.   JONES.  519 

recognized  the  Constitution  and  laws  of  the  United  States,  as  the 
supreme  law.  The  answer  of  Judge,  J.,  to  a  similar  argument  in 
Shepherd  v.  Reese,  supra,  was:  "The  contract  stands,  therefore,  as 
one  executed  in  a  foreign  government;  and  testing  its  legality  by  the 
lex  loci  contractus,  it  must  be  pronounced  to  have  been  a  valid  contract 
at  the  time  and  place  it  was  made.  But  can  it  be  enforced  in  a  court 
acting  under  the  authority  and  Constitution  of  the  United  States? 
We  understand  the  law  to  be  well  settled  that  it  cannot  be  if  it  is 
opposed  to  the  national  policy  or  national  Constitution?"  In  the  in- 
structions given  and  refused,  we  are  considering,  the  Circuit  Court 
did  not  err. 

The  second  instruction  requested  by  the  appellant  asserts  there  is 
material  difference  between  a  sale  to  the  Confederate  States,  or  to  its 
agents  for  its  use,  and  a  sale  to  an  individual  who  expected  to  profit 
by  it  in  making  contracts  for  its  use  with  the  Confederate  States. 
The  instruction  does  not  point  out  in  what  the  difference  consists. 
The  guilty  knowledge  of  the  seller  which  avoids  the  contract  may  be 
more  apparent  in  the  one  instance  than  the  other,  from  the  character 
of  the  person  with  whom  the  contract  is  made.  But  in  the  legal  con- 
sequences resulting  from  the  contract  there  is  no  difference.  The 
reason  in  either  instance  the  contract  is  held  void  is,  because  it  can- 
not be  reasonably  supposed,  that  a  party  knowing  another  intended 
an  illegal  purpose,  would  directly  or  indirectly  furnish  the  means  of 
accomplishing  it,  if  he  did  not  intend  to  aid  and  assist  it.  Degroot 
v.  Van  Duger,  20  Wend.  390;  Hanauer  v.  Doane,  supra;  Story's 
Con.  Laws,  §§  253,  254. 

Expressions  may  be  found  in  judicial  decisions,  and  in  text-books, 
which  seem  to  cast  reproach  on  a  party  resisting  the  performance  of 
contracts  into  which  he  has  voluntarily  entered,  because  of  their 
illegality,  and  would  indicate  that  the  law  looks  upon  the  defence 
with  disfavor.  Similar  expressions  may  be  found  in  reference  to  the 
statute  of  limitations,  and  at  one  time,  courts  were  so  far  led  astray 
by  them,  that  the  statute  lost  much  of  its  vigor.  Such  expressions 
are  the  individual  opinions  of  the  judge,  or  the  text-writer,  employ- 
ing them,  and  are  not  to  be  accepted  as  rules  of  law.  The  law  does 
not  regard  the  defence  with  favor  or  disfavor  —  it  does  not  inquire 
whether  there  are  or  are  not  circumstances  in  the  particular  case, 
which  render  the  defence  immoral  and  dishonest,  or  render  it  merito- 
rious, and  a  shield  to  the  party  making  it,  from  an  unconscionable 
demand  by  his  adversary,  who  may  be  cruelly  standing  on  the  letter 
of  the  bond.  The  law  does  not  look  with  favor  or  disfavor  to  the  one 
party  or  the  other,  declares  tliem  in  pari  delicto,  and  abstains  from  all 
interference  between  them. 


520  EFFECTS    OF    WAR   AS    BETWEEN   ENEMIES.       [PAET  II. 

The  presumption  of  law  is  in  favor  of  the  legality'  of  contracts,  and 
when  on  the  court  is  devolved  the  duty  of  construction,  if  it  is  fairly 
and  reasonably  susceptible  of  two  interpretations  —  one  rendering  it 
legal,  and  the  other  illegal,  that  interpretation  will  be  adopted  which 
will  support,  rather  than  that  which  will  defeat  it.  1  Brick.  Big. 
386,  §  164;  2  Chit.  Con.  977.  Following  out  the  principle,  illegality 
of  consideration  will  not  be  inferred,  when  the  evidence  is  justly  and 
reasonably  capable  of  being  reconciled  with  the  hypothesis  of  legal- 
ity. The  general  rule  applies,  that  fraud  or  illegality  is  not  to  be 
presumed;  the  party  affirming  the  one  or  the  other,  must  prove  it 
clearly  if  it  is  denied.  2  Chit.  Con.  978.  It  is  enough,  however, 
if  the  evidence  is  sufficient  to  produce  in  the  minds  of  the  jury  that 
degree  of  conviction  essential  in  civil  cases  —  it  is  not  necessary,  as  in 
criminal  cases,  that  it  should  remove  all  reasonable  doubt.  If  the 
appellant  had  requested  the  court  simply  to  instruct  the  jury,  that 
the  defence  in  the  present  case  ought  to  be  clearly  proved,  we  do  not 
inquire  whether  the  instruction  ought  to  have  been  given  —  without 
an  explanation  it  would  have  probably  misled;  and  instructions 
requested  which,  without  explanation,  may  mislead,  are  properly 
refused.  The  instruction  as  to  the  clearness  of  the  evidence  was 
connected  with  the  affirmation  that  the  law  disfavored  the  defence 
as  immoral  and  dishonest,  which  was  not  correct,  and  being  incorrect 
in  part,  was  refused  properly;  for  it  was  not  the  duty  of  the  court  to 
analyze  the  charge  disconnecting  the  correct  from  the  incorrect. 

Let  the  judgment  be  affirmed.-' 

1  In  Whitis  V.  Polk,  1871-2,  o6  Tex.  602,  a  carefully  considered  and  authoritative 
case,  it  is  said,  at  p.  627  :  "  The  pubhc  policy  of  the  United  States  during  the  war  was 
to  stop  all  commerce  or  trade  by  the  rebel  States  or  the  citizens  thereof  with  the  out- 
gide  worhi,  to  prevent  all  intercourse  wliatever  —  even  with  neutral  governments 
—  that  all  aid  or  comfort  might  be  cut  off,  to  tlie  end  that  the  rebel  power  might  the 
sooner  be  put  down  and  the  citizens  forced  to  their  rightful  allegiance.  This  was  a 
policy  the  government  had  a  right  to  inaugurate,  and  to  put  in  force  to  any  extent. 
Tlie  contract  sued  on  was  in  direct  conflict  with  this  policy,  and  for  that  reason  is  en- 
titled to  no  favorable  consideration  by  tlie  courts.  That  contracts  against  the  law 
and  public  policy  cannot  be  enforced  is  fully  recognized  in  Coppell  v.  Hall, 7  Wallace, 
543,  and  in  Hnnaner  v.  Doane,  12  Wallace,  342 ;  Hunt's  heirs  v.  Hunt,  1  Texas,  758  ; 
Goodman  v.  McGehee,  31  Texas,  253,  and  Griswold  v.   Waddington,  16  Johnson,  438. 

"  Again,  if  this  contract  was  made  in  aid  of  the  then  existing  rebellion,  it  was  null 
and  void,  and  should  not  now  he  enforced.  This  doctrine  has  been  so  often  and  with 
so  great  unanimity  announced  by  almost  every  court  in  the  country,  that  we  deem  it 
unnecessary  to  refer  to  but  few  authorities.  In  the  case  of  Hnnauer  v.  Doano,  12 
Wallace,  Justice  Bradley,  after  a  very  thorough  examination  of  authorities  on  that 
question,  comes  to  the  conclusion  that  '  he  who,  being  bound  by  his  allegiance  to  a 
government,  sells  goods  to  an  agent  of  an  armed  combination  to  overthrow  that  gov- 
ernment, knowing  that  the  purchaser  buys  them  for  that  treasonable  purpose,'  or  does 
any  otiier  act  to  aid  that  combination,  '  is  himself  guilty   of  treason  or  misprision 


chap.il]  the  "hoop."  521 


Section  29.  —  Trade  witu  the  Enemy. 


THE  "HOOP." 
High  Court  of  Admiralty,  1799. 

(1  C.  Robinson,  196.) 

Judgment.  —  Sir  W.  Scott.  —  "  This  is  the  ease  of  a  ship  laden  with 
flax,  madder,  geneva,  and  cheese,  and  bound  from  Rotterdam  osten- 
sibly to  Bergen;  but  she  was  in  truth  coming  to  a  British  port,  and 
took  a  destination  to  Bergen  to  deceive  the  French  cruisers;  and,  as 

thereof.'  The  appellee  in  this  case,  knowing  that  the  only  resource  for  the  Confed- 
erate army  in  ohtaining  clotliing  and  supplies,  consisted  in  tlie  cotton  of  the  country, 
and  knowing  also  that  ver}'  rigid  exactions  were  laid  upon  all  cotton  in  the  State  by 
the  Confederate  authorities,  even  to  one-half  of  the  entire  crop,  and  knowing  also  tliat 
no  cotton  could  be  got  out  of  the  country  without  satisfying  those  e-xactions  in  one 
wa}-  or  the  other,  voluntarily  purchased  Bowles's  cotton  for  the  purpose  of  sending 
the  same  out  of  the  country-  to  market,  and  then  made  a  bargain  with  the  appellant  to 
pay  the  Confederate  exactions,  and  procure  what  were  known  as  permits  for  sending 
the  same  beyond  tlie  Confederate  lines,  and  at  the  same  time  knowing  that  the 
■whole  transaction  was  in  direct  violation  of  the  laws  and  public  policy  of  the  United 
States,  can  now  hardly  plead  innocence,  or  an  exemption  from  the  legitimate  conse- 
quence of  his  acts.  He  is  to  all  intents  and  purposes  as  culpable  as  though  his  con- 
tract had  been  made  directly  with  the  Confederate  authorities,  in  which  he  iiad  bound 
himself  to  buy  cotton  and  give  one-half  to  the  Confederacy  for  permits  to  ship  the  other 
half;  and  the  one  entered  into  was  in  direct  aid  of  the  rebellion,  to  a  very  large  amount. 
It  is  entirely  immaterial  how  appellent  procured  tlie  permits  from  the  Confederate 
agents,  or  whether  the  Confederacy  was  paid  a  part  of  the  identical  cotton  turned  over 
by  appellee,  or  wliether  it  was  paid  out  of  other  cotton,  or  in  money  ;  yet  the  permits 
represented  the  interest  of  tiie  Confederate  authorities,  and  appellee  agreed  to  give  all 
that  they  represented;  and  that  agreement  was  in  aid  of  the  rebellion,  and  therefore 
treasonable  and  void,  and  the  courts  cannot  now  be  prostituted  to  take  jurisdiction  ot 
or  aid  either  party  in  the  enforcement  of  the  execution  of  the  same.  Ilanauer  v. 
Doane,  12  Wallace  ;  Gooflman  v.  Mcdehee,  31  Texas,  2-54  ;  Priilgeon  v.  Smith,  31  Texas, 
171;  Ransom  v.  Alexander,  31  Texas,  443;  also.  Emancipation  Cases,  81  Texas,  534." 

In  Isaacs,  Taijlor  ^  Williams  v.  City  of  Richmond,  1808,  60  Va.  30,  36,  it  is  held,  inter 
alia,  that  fifteen  thousand  dollars  paid  "  on  account  of  a  house  and  furniture  for  Mr. 
Davis  "  fell  within  expenditure  in  aid  of  rebellion  and  therefore  illegal. 

In  Dewing  v.  Perdicaries,  1877,  96  U.  S-  198,  court  said  :  "  Nothing  is  better  settled 
in  the  jurisprudence  of  this  city  than  that  all  acts  done  in  aid  of  the  rebellion  were 
illegal  and  of  no  validity.  The  principle  has  become  axiomatic.  It  would  be  a  mere 
waste  of  time  to  linger  upon  the  point  for  the  purpose  of  discussing  it,  Texas  v.  White, 
7  Wall.  700  ;  Hickman  v.  Jones,  9  id.  197  ;  Ilanauer  v.  Doane,  12  id.  342 ;  Knox  v.  Lee, 
id.  457;  Hanatier  v.  Woodruff,  15  id.  439;  Cortiet  v.  Williams,  20  id.  220;  Sprolt  v. 
United  States,  id.  459."  To  whicii  may  be  added,  although  axiomatic,  tlie  following 
two  authorities  :  U.  S.  v.  Iluckhee,  1872,  16  Wall.  414  ;  WhUJield  v.  U.  S.,  1875, 
92  U.  S.  165.     See,  also,  Bragg  v.  Tuffts,  1887,  49  Ark.  454,  562.  —  Ed. 


522  EFFECTS    OF    WAR    AS   BETWEEN   ENEMIES.       [PAET  H. 

the  claim  discloses  (of  wliich  I  see  no  reason  to  doubt  the  truth),  the 
goods  were  to  be  imported  on  account  of  British  mercliants,  being 
most  of  tliem  articles  of  considerable  use  in  the  manufactures  and 
commerce  of  this  country,  and  being  brought  under  an  assurance 
from  the  commissioners  of  customs  in  Scotland  that  they  might  be 
lawfully  imported  without  any  license,  by  virtue  of  the  statute  35 
Geo.  3,  c.  15,  §  180.  ^ 

"  It  is  said  that  these  circumstances  compose  a  case  entitled  to 
great  hidulgence  ;  and  I  do  not  deny  it.  But  if  there  is  a  rule  of  law 
on  the  subject  binding  the  court,  I  must  follow  where  that  rule  leads 
me  ;  though  it  leads  to  consequences  which  I  may  privately  regret, 
when  I  look  to  the  particular  intentions  of  the  parties. 

"  In  my  opinion  there  exists  such  a  general  rule  in  the  maritime 
jurisprudence  of  this  country,  by  which  all  trading  with  the  public 
enemy,  unless  with  the  permission  of  the  sovereign,  is  interdicted. 
It  is  not  a  principle  peculiar  to  the  maritime  law  of  this  country ;  it 
is  laid  down  by  Bynkershoek  as  an  universal  principle  of  law. — 
'  Ex  natura  belli  commercia  inter  hostes  cessare  non  est  dubitandum. 
Quamvis  nulla  specialis  sit  commerciorum  prohibitio,  ipso  tamen 
jure  belli  commercia  esse  vetita,  ipsse  indictiones  bellorum  satis  de- 
carant,  etc'  He  proceeds  to  observe,  that  the  interests  of  trade,  and 
the  necessity  of  obtaining  certain  commodities  have  sometimes  so 
far  overpowered  this  rule,  that  different  species  of  traffic  have  been 
permitted,  '•  prout  e  re  sua,  suhditorumque  suorum  esse  censent  jyriji- 
cipes '  (Bynk,  Q.  J,  P.  B.  1,  c.  3.)  But  it  is  in  all  cases  the  act  and 
permission  of  the  sovereign.  Wherever  that  is  permitted,  it  is  a 
suspension  of  the  state  of  war  quo  ad  hoc.  It  is,  as  he  expresses  it, 
'•j)ro  parte  sic  helium,  i^ro  parte  2mx  inter  suhditos  -utriusque p)rincipes? 
It  appears  from  these  passages  to  have  been  the  law  of  Holland ; 
Valin,  1.  iii,,  tit.  6,  art.  3,  states  it  to  have  been  the  law  of  France, 
whether  the  trade  was  attempted  to  be  carried  on  in  national  or  in 
neutral  vessels ;  it  will  appear  in  a  case  which  I  shall  have  occa- 
sion to  mention,  TJie  Fortuna,  to  have  been  the  law  of  Spain  ;  and  it 
may,  I  think,  without  'rashness  be  affirmed  to  have  been  a  general 
principle  of  law  in  most  of  the  countries  of  Europe. 

"  By  the  law  and  constitution  of  this  country,  the  sovereign  alone 
has  the  power  of  declaring  war  and  peace.     He  alone  therefore  who 

1  The  85  G.  3,  c.  15  (March  16,  1795),  enacts,  "that  it  shall  be  lawful  to  import 
such  goods  belonging  to  subjects  of  the  United  Provinces,  or  to  any  who  were  sub- 
jects before  the  I'Jtii  of  January,  1795,  or  to  any  subject  of  his  Majesty,  to  be 
landed  and  secured  in  warehouses  for  the  benefit  of  the  proprietor,  and  for  the  se- 
curity of  the  revenue."  Subsequent  acts  contain  further  regulations  for  property 
coming  from  Holland,  in  the  ambiguous  situation  of  the  two  countries  at  that  time. 


CHAP,  rr.]  THE  "  HOOP."  523 

has  the  power  of  entirely  removing  the  state  of  war,  has  the  poAver 
of  removing  it  in  part,  by  permitting,  where  he  sees  proper,  that 
commercial  intercourse  which  is  a  partial  suspension  of  the  war. 
There  may  be  occasions  on  which  such  an  intercourse  may  be  highly 
expedient.  But  it  is  not  for  individuals  to  determine  on  the  expe- 
diency of  such  occasions  on  their  own  notions  of  commerce,  and  of 
commerce  merely,  and  possibly  on  grounds  of  private  advantage  not 
very  reconcilable  with  the  general  interest  of  the  state.  It  is  for  the 
state  alone,  on  more  enlarged  views  of  policy,  and  of  all  circum- 
stances which  may  be  connected  with  such  an  intercourse,  to  deter- 
mine when  it  shall  be  permitted,  and  under  what  regulations.  In 
my  opinion,  no  principle  ought  to  be  held  more  sacred  than  that  this 
intercourse  cannot  subsist  on  any  other  footing  tlian  that  of  the 
direct  permission  of  the  state.  Who  can  be  insensible  to  the  conse- 
quences that  might  follow,  if  every  person  in  a  time  of  war  had  a 
right  to  carry  on  a  commercial  intercourse  with  the  enemy,  and  un- 
der color  of  that,  had  the  means  of  carrying  on  any  other  species  of 
intercourse  he  might  think  fit  ?  The  inconvenience  to  the  public 
might  be  extreme ;  and  where  is  the  inconvenience  on  the  other  side, 
that  the  merchant  should  be  compelled,  in  such  a  situation  of  the 
two  countries,  to  carry  on  his  trade  between  them  (if  necessary)  un- 
der the  eye  and  control  of  the  government,  charged  with  the  care  of 
the  public  safety  ? 

"Another  principle  of  law,  of  a  less  public  nature,  but  equally  general 
in  its  reception  and  direct  in  its  application,  forbids  this  sort  of  com- 
munication as  fundamentally  mconsistent  with  the  relation  at  that 
time  existing  between  the  two  countries;  and  that  is,  the  total  in- 
ability to  sustain  any  contract  by  an  appeal  to  the  tribunals  of  the 
one  country,  on  the  part  of  the  subjects  of  the  other.  In  the  laAv  of 
almost  every  country,  the  character  of  alien  enemy  carries  with  it  a 
disability  to  sue,  or  to  sustain  in  the  language  of  the  civilians  a  per- 
sona standi  injucUcio.  The  peculiar  law  of  our  own  country  applies 
this  principle  with  great  rigor.  The  same  principle  is  received  in 
our  courts  of  the  law  of  nations ;  they  are  so  far  British  courts,  that 
no  man  can  sue  therein  who  is  a  subject  of  the  enemy,  unless  under 
particular  circumstances  that  ^j»?-o  ]idc  vice  discharge  him  from  the 
character  of  an  enemy ;  such  as  his  coming  under  a  flag  of  truce,  a 
cartel,  a  pass,  or  some  other  act  of  public  authority  that  puts  him  in 
the  King's  peace  ^>;'o  hdc  vice.  But  otherwise  he  is  totally  ex  lex ; 
even  in  the  case  of  ransoms  which  are  contracts,  but  contracts  aris- 
ing ex  jure  belli,  and  tolerated  as  such,  the  enemy  was  not  permitted 
to  sue  in  his  own  proper  person  for  the  payment  of  tlie  ransom  bill  ; 
but  the  payment  was  enforced  by  an  action  brought  by  the  impris- 


524  EFFECTS   OF   WAE   AS   BETWEEN  ENEMIES.       [PAET  II. 

oned  hostage  in  the  courts  of  his  own  country,  for  the  recovery  of 
his  freedom.  A  state  in  which  contracts  cannot  be  enforced,  cannot 
be  a  state  of  legal  commerce.  If  the  parties  who  are  to  contract 
have  no  right  to  compel  the  performance  of  the  contract,  nor  even  to 
appear  in  a  court  of  justice  for  that  purpose,  can  there  be  a  stronger 
proof  that  the  law  imposes  a  legal  inability  to  contract  ?  To  such 
transactions  it  gives  no  sanction  ;  they  have  no  legal  existence  ;  and 
the  whole  of  such  commerce  is  attempted  without  its  protection  and 
against  its  authorit}'.  Bynkershoek  expresses  himself  with  great 
force  upon  this  argument  in  his  first  book,  chapter  7,  where  he  lays 
down  that  the  legality  of  commerce  and  the  mutual  use  of  courts  of 
justice  are  inseparable ;  he  says,  that  cases  of  commerce  are  undis- 
tinguishable  from  cases  of  any  other  species  in  this  respect.  'Si  hosti 
seniel  permittas  actiones  exercere,  difficile  est  distinguere  ex  qua 
causa,  oriunter,  nee  potui  animadvertere  illam  distinctionem  usu 
fuisse  servatam.' 

"Upon  these  and  similar  grounds  it  has  been  the  established  rule 
of  law  of  this  court,  confirmed  by  the  judgment  of  the  Supreme 
Court,  that  a  trading  with  the  enemy,  except  under  a  royal  license, 
subjects  the  property  to  confiscation; — and  the  most  eminent  persons 
of  the  law  sitting  in  the  Supreme  Court  have  uniformly  sustained 
such  judgments.  *  *  *  i 

"  I  omit  many  other  cases  of  the  last  and  the  present  war  merely 
on  this  ground  that  the  rule  is  so  firndy  established,  that  no  one  case 
exists  which  has  been  permitted  to  contravene  it, — for  I  take  upon 
me  to  aver,  that  all  cases  of  this  kind  which  have  come  before  that 
tribunal  have  received  an  uniform  determination.  The  cases  which 
I  have  produced,  prove  that  the  rule  has  been  rigidly  enforced : — 
where  acts  of  parliament  have  on  different  occasions  been  made  to 
relax  the  navigation-law  and  other  revenue  acts  ;  where  the  govern- 
ment has  authorized,  under  the  sanction  of  an  act  of  parliament,  a 
homeward  trade  from  the  enemy's  possession,  but  has  not  especially 
protected  an  outward  trade  to  the  same,  though  intimately  con- 
nedted  with  that  homeward  trade,  and  almost  necessary  to  its  exist- 
ence ;  that  it  has  been  enforced  where  strong  claim  not  merely  of 

^  In  support  of  this  rule  Sir  W.  Scott  reviews  a  large  number  of  cases  decided  on 
appeal  by  the  Lords  of  Appeal.  These  cases  are  the  following :  The  Rin(fende 
Jacob,  1750;  The  Lady  Jane,  1749;  Deergaden,  1747;  The  Elizabeth,  1749;  The 
Jnffiow  Louisa  Margaretha,  1781;  The  St.  Lou/s,  1781  ;  The  Victoria,  1781;  The 
Comte  de  W ohrougoff,  1781;  The  Giddita,  1785;  The  Eenigheid,  1795;  The  FoHuiia, 
1795;    The  Freedom,  1795;   The  William,  1795. 

Tiiese  were  all  cases  in  which  the  property  in  question  was  condemned,  though 
some  of  them,  like  the  case  of  the  Hoop,  were  cases  of  great  hardship  upon 
Britisii  merchants.  —  Ed. 


CHAP,  ri.]  POTTS   V.   BELL.  525 

convenience,  but  almost  of  necessity,  excused  it,  on  belialf  of  the 
individual ;  that  it  has  been  enforced  where  carriages  have  been  laden 
before  the  war,  but  where  the  parties  have  not  used  all  possible  dili- 
gence to  countermand  the  voyage  after  the  first  notice  of  hostilities  ; 
and  that  it  has  been  enforced  not  only  agahist  the  subjects  of  the 
crown,  but  likewise  against  those  of  its  allies  in  the  war,  upon  the 
supposition  that  the  rule  was  founded  on  a  strong  and  universal 
principle,  which  allied  states  in  war  had  a  right  to  notice  and  apply, 
mutually,  to  each  other's  subjects.  Indeed  it  is  the  less  necessary 
to  produce  these  cases,  because  it  is  expressly  laid  down  by  Lord 
Mansfield,  as  I  understand  him,  that  such  is  the  maritime  law  of 
England."     (Gist  v.  Mason,  1  T.  R.,  85.) 

[In  conclusion,  Sir  W.  Scott  held  that  the  acts  of  Parliament  in 
question  were  not  intended  to  legalize  the  trade  without  special 
licenses  ;  and  that  the  law  advisers  of  the  commissioners  were  wrong 
in  their  conclusions  to  that  effect.  The  property  was  therefore  con- 
demned according  to  the  strict  rule  of  law.] 


POTTS  V.   BELL. 
Kixg's  Bexch,  1800. 

(8  Term  Reports,  548.) 

This  was  the  case  of  a  neutral  ship  captured  by  a  French  cruiser  on 
a  voyage  from  Rotterdam  to  Hull,  for  having  on  board  enemy  property 
(English).  These  goods  were  bought  in  Rotterdam  by  the  agent 
of  an  English  house,  after  the  breaking  out  of  hostilities  between 
France  and  England,  and  insured  in  an  English  company.  An  action 
was  brought  on  the  insurance  policy. 

The  defendant  insisted  that  the  plaintiff  was  not  entitled  to  re- 
cover ;  because  the  policy  was  void,  inasmuch  as  it  was  not  laAvful 
to  trade  with  the  enemy.  The  Common  Pleas  found  for  the  plaint- 
iffs.   But  on  appeal,  this  judgment  was  reversed : 

Judgment, — Lord  Kexyox,  Cli.,  J. : — "  The  court  had  very  fully  con- 
sidered the  case  immediately  after  the  very  learned  argument  which 
had  been  made  by  the  King's  advocate.  Sir  J.  Xicholl,  in  the  last 
term.  That  the  reasons  which  he  had  urged  and  the  authorities  he 
had  cited  were  so  many,  so  uniform,  and  so  conclusive  to  show  that 
a  British  subject's  trading  with  an  enemy  was  illegal,  that  the  ques- 
tion might  be  considered  as  finally  at  rest.  That  those  authorities, 
it  was  true,  were  mostly  drawn  from  the  decisions  of  the  admiralty 


526  EFFECTS    OF   WAR   AS   BETWEEN    ENEMIES.       [PART  II. 

courts ;  and  that  though  all  diligence  had  been  used,  there  was  only 
one  direct  authority  on  the  subject  to  be  found  in  the  common-law 
books,  and  that  one  was  to  the  same  effect.  But  that  the  circum- 
stances of  there  being  that  single  case  only  was  strong  to  show 
that  the  point  had  not  been  since  disputed,  and  that  it  might  now  be 
taken  for  granted  that  it  was  a  principle  of  the  common  law  that 
trading  with  an  enemy  without  the  King's  license  was  illegal  m 
British  subjects.  That  it  was  therefore  needless  in  this  case  to 
delay  giving  judgment  for  the  sake  of  pronouncing  the  opinion  of 
the  court  in  more  formal  terms ;  more  especially  as  they  could  do 
little  more  than  recapitulate  the  judgment  with  the  long  train  of 
authorities,  already  to  be  found  in  the  clearest  terms  in  the  principal 
report  of  the  case  of  the  Hoop  published  by  Dr.  Robinson.  That 
the  consequence  was  that  the  judgment  of  the  court  of  Common 
Pleas  must  be  reversed." 


FLINDT  V.   SCOTT. 

SAME  V.   CROCKATT. 

In  the  Exchequer  Chamber,  1814. 

(5  Taunton,  674  ) 

Thomson,  C.  B.  His  lordship  stated  the  declaration  and  the 
special  verdict  at  large.  The  merits  of  this  case  must  mainly,  if  not 
entirely,  depend  on  the  effect  and  operation  of  the  license,  under 
which  the  cargo,  the  subject  of  the  insurance  in  question,  was 
shipped.  If  the  shipment  made  under  the  sanction  of  the  license  is 
legal,  then  the  insurance  on  it  must  be  so,  too,  and  the  underwriter  is 
responsible  for  the  loss  that  has  happened  by  the  seizure  of  the  cargo, 
unless  he  can  establish  some  good  ground  for  being  discharged  from 
that  responsibility.  It  is  proper  to  consider  the  nature  and  end  of 
such  a  license  as  the  present,  issued  by  the  government  of  this  coun- 
try during  hostilities  with  foreign  nations;  there  can  be  no  doubt 
that  the  sovereign  may,  during  a  war,  equally  license  the  trading  of 
any  of  his  subjects  with  an  enemy,  or  license  enemies  to  trade  with 
his  subjects.  The  great  object  of  obtaining  such  an  intercourse  by 
such  license  was  to  provide  the  means  of  exporting,  notwithstanding 
the  pressure  of  war,  the  manufacturers  of  this  country,  and  to 
receive  in  return  from  the  other  country  such  articles  as  we  most 
stood  in  need  of;  and  that  was  particularly  the  case  with  respect  to 
Eussia :  we  wanted  the  produce  of  that  country  in  general,  and  espe- 


CHAP.  11.]  FLINDT   V.   SCOTT.  527 

cially  the  article  of  naval  stores.  And  these  licenses  to  trade,  how- 
ever they  may  have  been  formerly  construed  strictly,  are  now  in  all 
courts  construed  more  liberally,  and  favorably  to  trade,  in  order  to 
effectuate  the  benefits  intended  to  result  from  them.  There  is  in  the 
present  instance  nothing,  either  in  the  terms  of  the  license,  or  in  the 
principles  of  public  policy,  which  ought  to  restrict  the  operation  of 
the  authority  given  to  the  exportation  of  property  belonging  to  the 
subjects  of  this  country  only;  on  the  contrary/,  the  license  is  granted 
to  Gustavus  riindt  and  Co.  of  London,  merchants,  on  behalf  of  them- 
selves and  others,  to  export  a  cargo  from  London  to  Archangel,  being 
an  enemy's  port,  and  to  import  from  thence  in  the  same  ship  a  cargo 
of  such  goods  as  are  permitted  by  law  to  be  imported  (with  some 
exceptions),  to  any  port  in  the  United  Kingdom,  notwithstanding  all 
the  documents  which  accompany  the  ship  and  cargo  may  represent 
the  same  to  be  destined  to  any  neutral  or  hostile  port,  and  to  whom- 
soever such  property  may  appear  to  belong:  terms,  which  to  me  suffi- 
ciently indicate  thab  the  cargo,  either  outwards  or  homewards,  might 
legally  comprehend  the  property  of  enemies.  And  these  terms  have 
been  adopted  for  that  very  purpose,  which  terms  in  the  opinion  of 
the  very  learned  judge  of  the  Court  of  Admiralty  (as  appears  from 
the  case  of  the  Couslne  Marianne),  have  in  that  court  been  held  to 
exclude  all  inquiry  in  whom  the  property  is  vested.  Our  government, 
in  licensing  a  trade  directly  with  the  enemy  at  this  port,  must  have 
had  a  view  both  to  exportation  and  importation.  Why  may  not  the 
license  be  construed  to  permit  the  exportation  of  a  cargo  by  an  enemy 
to  that  hostile  port,  from  whence  the  return  cargo  is  to  be  imported? 
The  cargo  exported  from  this  country  must  necessarily  be  consigned 
to,  and  ultimately  become  the  property  of  a  foreigner  at  that  port : 
why  then  may  it  not  be  permitted  to  the  foreigner  at  once  to  acquire 
the  property  here,  and  to  export  the  goods  by  his  agent  in  this 
country?  In  Feise  and  Another  v.  Bell,  4  Taunt.  4,  under  a  license 
to  a  British  merchant  by  name,  on  behalf  of  himself  and  others,  to 
export  a  cargo  to  St.  Petersburg,  and  to  import  a  cargo  from  thence; 
though  an  alien  enemy  was  interested  both  in  the  exported  and  im- 
ported cargoes,  yet  the  Court  of  Common  Pleas  held  that  it  was  no 
objection  to  the  plaintiff's  recovering  on  their  insurance.  In  Moi-gan 
v.  Oswald,  3  Taunt.  554,  a  question  arose  upon  a  license  granted  to  a 
British  merchant,  that  a  ship  might  go  to  an  hostile  port,  and  bring 
home  a  cargo  of  goods.  It  permitted  a  vessel,  bearing  any  flag  except 
the  French,  to  proceed  in  ballast  from  any  port  north  of  the  Scheldt, 
to  Archangel,  or  any  other  port  in  the  White  Sea,  there  to  load  a 
cargo  of  such  goods  as  were  permitted  by  law  to  be  imported  (with 
some  exceptions),  and  to  proceed  with  the  same  to  a  port  of  the 


528  EFFECTS   OF    "SVAR    AS   BETWEEN   ENEMIES.       [PART  II. 

United  Kingdom.  It  was  held,  that  license  authorized  the  importa- 
tion of  goods,  the  property  of  an  alien  enemy,  the  subject  of  that 
hostile  country;  and  therefore  authorized  him  to  insure  and  to  en- 
force his  contract  of  insurance  in  the  courts  of  this  country.  In  the 
case  of  Robinson  v.  Touray,  1  jNIaule  &  Selw.  217,  which  arose  on  the 
same  ship,  license  and  policy,  the  Court  of  King's  Bench  adopted 
the  same  doctrine.  In  the  case  of  Fenton  and  Another,  Assignees  of 
Bennaucls,  Bankrupts,  v.  Pearson,  15  East,  419,  the  Court  of  King's 
Bench  determined  that  a  trading  license  from  the  crown  to  British 
merchants  to  send  a  ship  in  ballast  to  an  enemy's  port,  there  to 
receive  and  load  a  cargo,  and  import  it  into  this  country,  by  legaliz- 
ing the  purchase  by  the  subject,  legalized  the  sale  by  the  enemy,  and 
impliedly  legalized  his  right  to  stop  the  goods  in  transitu,  after  their 
arrival  in  port  here,  upon  the  intermediate  insolvency  of  the  vendees, 
the  whole  price  not  being  paid,  and  the  part  that  had  been  paid  being 
offered  to  be  refunded;  and  that  the  alien  enemy  Avas  permitted  to 
employ  an  agent  here  for  that  purpose.  The  assignees  of  the  ven- 
dees, who  had  become  bankrupts,  were  therefore  not  allowed  to 
recover  against  him  in  an  action  of  trover.  The  second  objection 
made  to  the  plaintiff's  recovering  in  this  case  was,  that  the  under- 
writers were  not  answerable  for  this  loss,  because  it  was  occasioned 
by  the  act  of  the  Russian  Government,  to  which  the  persons  interested 
must  be  supposed  to  have  given  their  assent,  they  being  Eussians. 
And  in  support  of  that  position  two  cases  were  cited,  Touteng  v.  Huh- 
hard,  3  Bos.  &  Pull.  291,  and  Conway  v.  Gray,  10  East,  554.  The 
first  was  a  case  where  a  British  merchant  chartered  a  Swedish  ship 
on  a  voyage  to  St.  Michael's  for  a  cargo  of  fruit,  and  the  charter- 
party  contained  the  usual  exception  against  the  restraint  of  princes ; 
and  the  ship  being  prevented  from  reaching  St.  Michael's  within  the 
fruit  season  by  an  embargo  laid  on  Swedish  vessels  by  the  British 
Government,  the  question  was,  whether  the  Swedish  owner  acquired 
a  right,  by  proceeding  on  the  voyage  after  the  embargo  was  taken  off 
(when  it  was  too  late  to  obtain  a  cargo),  to  recover  the  freight  against 
the  British  merchant.  The  court  determined  that  he  had  no  such 
right;  and  they  went  farther,  and  determined,  what  was  not  then  a 
question  before  them,  that  an  insurance  upon  the  property  of  a  for- 
eigner against  a  loss  remotely  occasioned  by  an  act  of  his  own  state 
would  be  illegal.  It  was  not  the  main  question  in  that  case,  though 
certainly  it  was  so  decided.  The  case  of  Conway  v.  Gray  proceeded 
in  a  degree  on  the  authority  of  Touteng  v.  Hubbard.  In  that  case  it 
was  decided,  that  an  American  subject  could  not  recover  for  a  loss 
sustained  by  reason  of  an  embargo  laid  on  in  one  of  the  ports  of  his 
own  country  by  his  own  government.     But  these  decisions,  even  sup- 


CHAP.  II.]  FLINDT   V.    SCOTT.  529 

posing  them  to  be  correct  as  applied  to  the  cases  in  which  they  were 
made,  do  not  affect  the  present  case;  for  if  this  license  is  to  be 
deemed  (which  I  think  it  is)  sufficient  to  cover  the  Kiissian  property, 
and  authorizes  a  trading  to  the  enemy's  port,  that  incidentally  legal- 
izes the  insurances  made  on  that  property,  which  must  protect  it 
throughout,  till  the  conclusion  of  that  risk,  just  as  if  it  had  belonged 
to  British  subjects.  The  underwriters,  knowing  that  these  goods  are 
going  to  Kussia,  to  an  enemy's  port,  and  being  willing  that  the 
adventure  should  proceed  with  simulated  papers  and  documents, 
assent  to  the  design  of  the  owners  of  the  goods  to  contravene  the 
regulations  of  that  country,  to  which  they  are  to  be  consigned,  and 
take  on  themselves  the  risk  of  confiscation  in  the  event  of  the  fraud 
being  detected.  The  effect  of  the  license  is,  to  convert  this  Russian, 
though  an  alien  enemy,  as  it  w^ere,  into  an  alien  friend,  and  so  far  to 
separate  him  from  the  acts  of  his  government,  as  concerns  the  subject 
matter  of  this  license.  Lord  Ellenborough,  in  the  case  of  Usparicha 
V.  Noble,  13  East,  332,  has  delivered  himself  so  forcibly  and  clearly 
on  that  point,  and  the  circumstances  of  that  case  in  many  respects 
resemble  the  present  so  much,  that  I  shall  make  no  apology  for  stat- 
ing that  judgment  at  large.  [His  lordship  then  stated  that  case, 
and  read  the  whole  of  Lord  Ellenborougli's  judgment  thereon],  add- 
ing, This  opinion  seems  to  go  all  the  length  of  establishing  the  rigl4; 
of  this  plaintiff  to  sue  and  recover  in  the  present  cause,  though  it  is 
perfectly  well  known  tliat  his  lordship  has  not  entirely  adhered  to 
the  judgment  he  had  formerly  given,  but  that,  on  the  contrary,  in 
the  case  now  in  judgment  he  contrasts  it  with  the  opinion  he  had 
given  in  the  case  that  has  been  cited.  The  result  of  the  whole  is, 
that  we  are  clearly  of  opinion  (though  the  reasons  of  that  opinion,  I 
ought  to  say,  are  my  own  only)  that  as  the  case  appears,  the  license 
legalizes  the  whole  transaction,  the  insurance  in  question  was  prop- 
erly made,  and  the  circumstance  that  the  confiscation  of  the  property 
was  made  by  the  Russian  Government,  will  not  affect  the  plaintiff's 
right  to  recover  in  this  action.  And  therefore  the  judgment  of  the 
Court  of  King's  Bench  ought  to  be  reversed,  and  judgment  ought  to 
be  given  for  the  plaintiff.  I  should  add,  that  ^Mr.  Baron  AVood,  who 
is  prevented  from  attending  by  indisposition,  concurs  in  the  judgment 

of  the  court. ^ 

Judgment  for  the  plaintiff.^ 

'•■  This  cnse  was  learnedly  argued,  the  judgment  carefully  considered,  and  it  has 
been  repeatedly  cited  and  approvud.  Tiie  case  of  Usparicha  v.  Noble,  1811,  lo  East, 
322,  held  that  a  native  Spaniard  domiciled  in  Great  Britain  in  time  of  war  between 
Great  Britain  and  Spain,  having  been  licensed  in  general  terms  by  the  King  of  Great 
Britain  to  ship  goods  in  a  neutral  vessel  to  certain  points  of  Spain,  such  commerce  is 

3i 


530  EFFECTS   OF   WAR  AS   BETWEEN   ENEMIES.       [PAKT  U. 

WILLIAMS  V.    MARSHALL. 
Common  Pleas,  1815. 

(6  Taunton,  890.) 

GiBBS,  C.  J.  I  should  have  been  exceedingly  glad  to  find  that  this 
license  was  substantially  complied  with.  The  voyage  to  be  performed 
was  illegal  without  a  license :  one  of  the  terms  on  which  the  license 
was  granted  is,  that  the  goods  shall  be  exported  on  or  before  the 
10th  September:  these  goods  were  not  cleared  at  the  custom  house 
till  the  9th  of  September :  the  ship  had  not  sailed  on  the  10th  of  Sep- 
tember. On  the  12th  she  was  at  Gravesend,  but  when  she  weighed 
it  does  not  appear.  Whether  she  was  covered  by  this  license,  or  not, 
depends  on  the  question  whether  she  sailed  on  the  10th.  I  cannot 
say,  however  I  may  be  disposed  to  favor  the  plaintiifs,  that  the 
clearing  at  the  custom  house  is  an  exportation.  Considerable  light 
is  thrown  on  the  question  by  the  fact,  that  by  the  regulations,  or  at 
least  by  the  practice  of  this  country,  the  drawback  is  not  paid  till 
after  the  passing  Gravesend;  and  therefore  upon  the  interpretation, 
which  has  prevailed,  of  those  acts  of  Parliament  which  give  a  draw- 
back, it  appears  that  ships  are  not  considered  as  having  exported  till 
after  passing  Gravesend;  therefore,  with  every  disposition  to  favor 
this  action,  we  cannot  say  that  the  plaintiffs  are  entitled  to  recover. 

Rule  absolute  for  a  new  trial,  the  defendant  admitting  the  two 
policies  as  stated  in  the  declaration.^ 

legalized  for  all  purposes  of  its  due  and  effectual  prosecution,  either  for  tlie  benefit  of 
the  party  liimself  or  of  his  correspondents,  although  residing  in  the  enemy's  country. 
—  Ed. 

1  A  license  to  trade  is  uot  assignable  (unless  clearly  general  in  its  terms  and  intent) 
Feise  V.  Thompson,  1807,  1  Taunt.  121  ;  The  Acteon,  1815,  2  Dod.  48 ;  if  subject 
to  condition,  license  is  void  if  condition  is  not  complied  with,  Camelo  v.  Britten,  1820, 
4  B.  &  Aid.  184: 

"  Wc  have  arrived  at  this  conclusion  with  great  reluctance  ;  because  it  appears  that 
in  this  case  there  was  no  intention  to  violate  the  law,  and  that  this  was  the  usual  mode  of 
carrying  on  the  trade.  We,  however,  feel  ourselves  obliged  to  say  that  the  terms  of  the 
license  have  not  been  complied  with:  The  consequence  of  which  is,  that  the  plaintiff 
cannoi  recover"  (per  Abbott,  C.  J.) ;  License  to  one  set  of  British  mercliants  cannot 
be  used  to  cover  trading  by  other  British  merchants,  without  connecting  them  together. 
Bush  V.  Bell,  1812,  IG  East,  .3;  importation  of  more  goods  than  license  warrants  will 
not  vitiate  insurance  on  goods  licensed,  Prischell  v.  Allnut,  1813,  4  Taunt.  792  ;  Keir  v. 
Andrade,  181G,  2  Marsh.  19G  ;  license  as  to  goods  in  ship  will  legalize  insurance  on 
ship  and  competent  for  British  agent  of  both  parties,  in  whose  name  insurance  was 


CHAP.  II.]  THE    "  SEA   LION."  631 

THE   "SEA  LION." 

« 

Supreme  Court  of  the  United  States,  18G6. 

(5  Wallace,  630.) 

An  act  of  Congress  passed  during  the  late  rebellion  (July  13th, 
18G1),  prohibited  all  commercial  intercourse  between  the  inhabitants 
of  any  State  which  the  President  might  declare  in  a  state  of  insur- 
rection, and  the  citizens  of  the  rest  of  the  United  States;  and 
enacted  that  all  merchandise  coming  from  such  territory  into  other 
ports  of  the  United  States  with  the  vessel  conveying  it  should  be 
forfeited. 

The  act  provided,  however,  that  "  the  President "  might  "  in  his 
discretion  license  and  permit  commercial  intercourse  "  with  an^  such 
part  of  a  State  the  inhabitants  of  which  had  been  so  declared  in  a 
state  of  insurrection,  "  in  such  articles,  and  for  such  time,  and  by 
such  persons,  as  he,  in  his  discretion,  may  think  most  conducive  to 
the  public  interest."  And  that,  "such  nitercourse,  so  far  as  by  Jiim 
licensed,  shall  be  conducted  and  carried  on  only  in  pursuance  of  rules 
and  regulations  prescribed  by  the  secretary  of  the  treasury." 

The  President  having  soon  after  declared  several  Southern  States, 
and  among  them  Alabama,  in  a  state  of  insurrection,  and  the  Secre- 
tary of  the  Treasury  having  issued  a  series  of  commercial  regula- 
tions on  the  subject  of  intercourse  with  them,  Brott,  Davis  &  Shons, 
a  commercial  firm  of  New  Orleans,  obtained  from  Mr.  G.  S.  Den- 
nison,  special  agent  of  the  Treasury  Department,  and  acting  Col- 

effectecl,  to  sue  upon  the  policy  in  time  of  war,  Kensington  v.  Ingliss,  1807,  8  East,  273, 
290. 

"  While  it  is  true  that  conditions  of  license  must  be  complied  with  and  that  trading 
may  not  extend  beyond  time  limited  in  the  license,  perils  of  the  sea,  absence  of  laches 
and  fraud  will  extend  for  the  completion  of  the  voyage  the  time  of  the  license,  Siffkin 
V.  Glover,  1813,  4  Taunt.  717;  Siffkin  v.Alhiut,  1813,  1  M.&  S.  39;  Fveeland  v.  Walker, 
1812,  4  Taunt.  478,  (in  which  Gibbs,  J.,  observed,  in  the  course  of  tlie  argument, 
p.  482),  that  "  there  had  been  at  least  fifty  cases  in  the  King's  Bench,  where  tlie  plaintiflf 
had  recovered,  although  the  license  had  expired  at  the  time  of  loss,  and  it  had  never 
been  attempted  to  put  the  case  upon  the  point  of  the  license  being  expired  at  the  time 
of  the  capture." 

In  Leevin  v.  Cormac,  1811,  4  Taunt.  483,  Sir  James  Mansfield,  C.  J.,  said  in  speaking 
of  tlie  question  of  license,  p.  486 :  "  Tlie  merits  of  the  case  have  never  yet  been 
examined  into.  The  cases  decided  by  Sir  \V.  Scott  ( The  Goede  Hoop,  Edw.  Adm.  327  ; 
Johan  Pieter,  ib.  354)  deserve  the  greatest  attention."  Compare  the  language  of  the 
learned  chief  justice  at  page  487  of  the  same  case.  —  Ed. 


532  EFFECTS    OF   WAE   AS    BETWEEN   ENEMIES.       [PAET  II. 

lector  of  Customs  at  New  Orleans,  a  paper,  dated  February  16tli,  1863, 
as  follows : 

"  The  United  States  military  and  other  authorities  at  Xew  Orleans  permit  cotton 
to  be  received  here  from  beyond  tlie  United  States  military  lines,  and  such  cotton 
is  exempt  from  seizure  or  confiscation.  An  order  is  in  my  hands  from  Major- 
General  Banks  approrinrj  and  directing  this  policy.  The  only  condition  iuiposed 
is  that  cotton  or  other  produce  must  not  be  bought  with  specie.  All  cotton  or 
other  ijroduce  brought  hither  from  the  Confederate  lines  by  Brott,  Davis  &  Shons 
■ivill  not  be  interfered  with  in  any  manner,  and  they  can  shii)  it  direct  to  any  for- 
eign or  domestic  port." 


This  paper  was  indorsed  hy  Jtear-Adrniral  Farragut,  in  com- 
ma)id  of  the  blockadinf/ force  on.  that  coast., '•'•  approved^  The  Rear- 
Admiral  had  given  also  the  following  instructions  to  his  commanders 
of  the  Mobile  blockade : 

"  Should  any  vessel  come  out  of  Mobile  and  deliver  itself  up  as  the  property  of  a 
Union  man  desiring  to  go  to  New  Orleans,  take  possession  and  send  it  into  New 
Orleans  for  an  investigation  of  the  facts,  and  if  it  be  shown  to  be  as  represented, 
the  vessel  will  be  considered  a  legal  trader,  imder  the  general  order  permitting  all 
cotton  and  other  produce  to  come  to  New  Orleans." 

"With  this  paper  of  the  collector  of  Xew  Orleans  in  their  hands, 
Brott,  Davis  &  Shons  had,  through  their  agents  in  Mobile,  seventy- 
two  bales  of  cotton  shipped  at  that  port  on  the  vessel  Sea  Lion  to 
be  carried  to  New  Orleans. 

The  vessel  was  captured  by  the  blockading  fleet  off  Mobile,  and 
taken  to  Key  West,  and  there  libeled  as  prize.  The  district  court 
condemned  the  property,  and  an  appeal  was  taken  to  the  Supreme 
Court. 

Mr.  Justice  Swayne,  in  delivering  the  opinion  of  the  court,  said  as 
to  the  question  of  license : — 

"  The  effect  of  this  paper  depends  upon  the  authority  under  Avhich 
it  Avas  issued.  The  fifth  section  of  the  act  of  July  loth,  1801,  author- 
ized the  President  to  proclaim  any  State  or  part  of  a  State  in  a 
condition  of  insurrection,  and  it  declared,  that  thereupon  all  com- 
mercial intercourse  between  that  territory  and  the  citizens  of  the 
rest  of  the  United  States,  should  cease  and  be  unlawful,  so  long  as 
the  condition  of  hostility  should  continue,  and  that  all  goods  and 
merchandise  coming  from  such  territory,  into  other  parts  of  the 
United  States,  and  all  proceeding  to  such  territory  by  land  or  Avater, 
and  the  vessel  or  vehicle  conveying  them,  or  conveying  persons  to  or 


CHAP.  II.]  THE   "SEA    LION."  533 

from  such  territory,  should  be  forfeited  to  the  United  States  :  Pro- 
vided^ however,  '  That  the  President  may,  in  his  discretion,  license 
and  permit  commercial  intercourse  with  any  such  part  of  said  State 
or  section,  the  inhabitants  of  which  are  so  declared  in  a  state  of  in- 
surrection in  such  articles,  and  for  such  time,  and  by  such  persons, 
as  he,  in  his  discretion,  may  think  most  conducive  to  the  public 
interest ;  and  such  intercourse,  so  far  as  by  him  licensed,  shall  be 
conducted  and  carried  on  only  in  pursuance  of  rules  and  regulations 
prescribed  by  the  Secretary  of  the  Treasury.' 

"  There  is  no  other  statutory  i^rovision  bearing  upon  the  subject 
material  to  be  considered. 

"On  the  IGth  day  of  August,  1861,  the  President  issued  his  procla- 
mation declaring  the  inhabitants  of  the  rebel  States,  including 
Alabama,  to  be  in  a  state  of  insurrection. 

"  On  the  28th  of  the  same  month  the  Secretary  of  the  Treasury, 
pursuant  to  the  provisions  of  the  act  referred  to,  issued  a  series  of 
regulations  upon  the  subject  of  commercial  intercourse  with  those 
States. 

"These  regulations  continued  in  force  until  the  31st  of  March, 
1863,  when  a  new  series  were  issued  by  the  same  authority.  The 
former  were  in  force  when  the  alleged  license  bears  date ;  the  latter 
when  the  vessel  and  cargo  left  Mobile  and  when  they  were  captured. 
It  is  unnecessary  to  analyze  them.  It  is  sufficient  to  remark  that 
they  contain  nothing  which  affords  the  slightest  pretext  for  issuing 
such  a  paper.  It  is  in  conflict  with  rules  and  requirements  contained 
in  both  of  them.  It  finds  no  warrant  in  the  statute.  The  statute 
prescribes  that  the  President  shall  license  the  trade.  The  only 
function  of  the  Secretary  was  to  establish  the  rules  by  which  it 
should  be  regulated,  when  thus  permitted.  The  order  of  General 
Banks  is  not  produced.  If  it  were  as  comprehensive  as  the  special 
agent  assumed  it  to  be,  it  covered  shipments  to  New  Orleans  from 
Wilmington,  Charleston,  and  all  points  in  the  rebel  States.  It  em- 
braced merchandise,  coming  alike  from  places  within,  and  places  be- 
yond his  military  lines.  With  respect  to  the  latter  it  was  clearly 
void.  The  President  only  could  grant  such  a  license.  Mobile  was 
then  in  possession  of  the  enemy.  The  vessel  and  cargo  bore  the 
stamp  of  the  enemy's  property.  The  paper  relied  upon  was  a 
nullity,  and  gave  them  no  protection.  They  were  as  much  liable  to 
capture  and  condemnation  as  any  other  vessel  or  cargo,  leaving  a 
blockaded  port  and  coming  within  reach  of  a  blockading  vessel. 

"  The  decree  below  was  rightly  rendered,  and  it  is 

"  Affirmed." 


534  EFFECTS   OF   WAE   AS   BETWEEN   ENEiVnES.       [PART  II. 

Mr.  Justice  Geier  :  — 

"I  do  not  concur  in  this  judgment.  The  vessel  went  out  of  Mobile 
by  permission  of  the  commander  of  the  blockade  there.  To  con- 
demn such  property  v^ould  be  a  violation  of  good  faith.  Ko  English 
court  has  ever  condemned  under  such  circumstances.'"  ^ 

1  For  the  tlieory  and  practice  of  the  United  States  in  tlie  matter  of  licensing  trade 
■witli  tlie  enemy  and  for  a  resume  of  the  decisions  of  courts  in  this  country  and  in  Eng- 
land, see  U.  S.  V.  One  Hundred  Barrels  of  Cement,  1862,  27  Fed.  Cas.  292  (3  Am. 
Law  Register,  735). 

In  Coppell  V.  Hall,  1868,  7  Wall.  542,  the  subject  was  considered  and  it  was  held, 
inter  alia,  that  it  was  for  the  sovereign's  prerogative  to  allow  or  disallow  trade  and  to 
prescribe  the  manner  in  which  trade,  if  permitted,  might  be  exercised  ;  that  such  power, 
being  sovereign  in  its  nature,  could  only  be  exercised  by  the  sovereign  or  his  duly 
authorized  agent,  and  tliat  a  military  commander,  as  such,  could  not  arrogate  to  him- 
self nor  exercise  such  power.  In  the  course  of  tlie  opinion  authorities,  English  and 
American,  are  cited  and  analyzed. 

Perhaps  the  clearest  assertion  and  application  of  the  sovereign  right  to  regulate 
trade  during  war  is  found  in  Hamilton  v.  Dillin,  1874,  21  Wall.  73.  Under  the  act  of 
July  13,  1861,  the  President  was  authorized  to  permit  trade  in  his  "discretion,"  but 
tliat  such  trade  when  permitted  was  to  be  under  rules  and  regulations  prescribed  by 
the  Secretary  of  the  Treasury.  By  virtue  of  this  authority,  cotton  was  permitted  to 
be  purchased  in  an  insurrectionary  State  and  shipped  to  any  loyal  district  upon  payment 
to  the  government  of  tax  of  four  cents  per  pound  purchased.  One  Hamilton  securer! 
permits  from  August,  1863,  to  July,  1864 ;  purchased  and  shipped  over  seven  million 
pounds  from  Nashville  at  a  time  when  Tennessee  was  occupied  by  tlie  Federal  forces. 
On  suit  to  recover  the  various  sums  thus  paid,  the  Supreme  Court  held  that  such 
regulation  was  binding  as  flowing  from  the  war  power ;  that  Nashville,  though  within 
the  national  military  lines  in  1863  and  1864,  was  nevertheless  hostile  territory,  within 
the  prohibition  of  commercial  intercourse,  being  within  the  terms  of  the  President's 
proclamation  :  that  the  civil  war  affected  the  status  of  the  entire  territory  of  the  States 
declared  to  be  in  insurrection  except  as  modified  bj*  the  declaratory  acts  of  Congress  or 
proclamation  of  the  President.  In  addition  to  authorities  cited,  the  case  is  valuable 
for  an  enumeration  and  examination  of  the  various  acts  and  proclamations  affecting 
trade  with  the  enemy. 

In  Magoon's  Military  Occupation,  210-255,  the  power  of  the  President  to  regulate 
trade  with  the  enemy  in  time  of  war  is  elaborately  considered,  in  the  course  of  which 
it  is  said  (p.  221)  :  "The  question  of  the  right  of  the  Federal  authorities  to  thus  exer- 
cise tlie  war  powers  of  the  nation  in  the  matter  of  trade  with  the  rebellious  States  was 
presented  to  the  Supreme  Court  of  the  United  States  in  many  forms  and  by  many 
cases.  In  each  instance  the  court  held  that  business  intercourse  between  the  States  at 
war  is  unlawful  without  express  declaration  of  the  sovereign,  the  existence  of  the 
condition  of  war  being  sufficient  to  create  the  inability  to  lawfully  engage  in  trade 
with  public  enemies.  United  Slates  v.  Grossmai/er,  9  Wall.  72;  Hanger  v.  Abbott, 
6  Wall.  632  ;  McKee  v.  United  States,  8  Wall.  163;  Mitchell  y.  United  States,  21  Wall. 
3.j0;  Jecker  v.  Montfjomery,  18  How.  110;  The  Prize  Cases,  2  Black,  635;  Hamilton  y. 
Dillin,  21  Wall.  73;  The  Reform,  3  Wall.  617;  The  Sea  Lion,  5  Wall.  630;  The 
Ouachita  Cotton,  6  Wall.  621  ;  Coppell  v.  Hall,  7  Wall.  542 ;  Mrs.  Alexander's  Cotton, 
2  Wall,  404."  And  the  same  learned  author  concludes :  "  It  would  therefore 
seem  — 

"  1.   That  in  a  territory  rendered  hostile  by  the  existence  of  an  insurrection  against 


CHAP.  IT.]  KERSHAW    I'.    KELSEY.  535 

KERSHAW   V.    KELSEY. 
Supreme  Court  of  jMassachusetts,  1868. 

(100  Massachusetts,  561.) 

A  citizen  of  Massachusetts,  residing  in  Mississippi  during  the  civil 
war,  leased  a  plantation  and  planted  it  with  crops;  but  was  driven 
away  by  soldiers  of  the  Confederate  States,  and  returned  to  Massa- 
chusetts. The  lessor  then  took  charge  of  the  plantation,  harvested 
the  crops,  and  delivered  to  the  lessee's  son,  in  Mississippi,  cotton  of 
the  value  of  $10,000.  The  cotton  was  shipped  to  the  lessee  at  Bos- 
ton by  his  son.  After  the  close  of  the  war,  the  lessor  sued  to  recover 
rent,  etc.,  and  the  question  was,  as  between  lessor  and  lessee,  whether 
there  was  trading  between  enemies. 

Judgment.  —  Gray,  J. :  ^  — 

"  The  defendant,  a  citizen  of  Massachusetts,  in  February,  1 864,  in 
Mississippi,  took  from  the  plaintiff,  then  and  ever  since  a  citizen  and 
resident  of  Mississippi,  a  lease  for  one  year  of  a  cotton  plantation  in 
that  state,  and  therein  agreed  to  pay  a  rent  of  ten  thousand  dollars, 
half  in  cash,  and  half  '  out  of  the  first  part  of  tlie  cotton  crop,  which  is 
to  be  fitted  for  market  in  reasonable  time.'  The  lessor  also  agreed  to 
deliver,  and  the  lessee  to  receive  and  pay  the  value  of  the  corn  then 
on  the  plantation.  It  does  not  appear  whether  the  defendant  went  in- 
to Mississippi  before  or  after  the  beghuiing  of  the  war  of  the  rebellion ; 
and  there  is  no  evidence  of  any  intent  on  the  part  of  either  party  to 
violate  or  evade  the  laws  or  oppose  or  injure  tlie  government  of  the 
United  States.  The  defendant  paid  the  first  instalment  of  rent,  took 
possession  of  the  plantation  and  corn,  used  the  corn  on  the  planta- 
tion, provided  it  witli  supplies  to  the  amount  of  about  five  thousand 

its  authority  the  United  States  may  exercise  tlie  war  powers  of  the  nation,  known  to 
international  law  and  the  laws  and  usages  of  war  as  belligerent  rights. 

"2.  That  the  payment  of  customs  duties,  if  considered  as  taxes  levied  by  a  govern- 
ment resulting  from  military  occupation  of  hostile  tcrritorj' ;  or  as  a  condition  imposed 
upon  the  right  to  trade;  as  military  contributions  required  from  hostile  territory  ;  or 
as  a  condition  imposed  upon  the  right  of  trade  with  hostile  territory,  are  each  and  all 
legitimate  and  lawful  requirements  imposed  by  exercise  of  belligerent  right. 

"3.  Tlie  military  occupier  of  districts  in  hostile  or  enemies'  territory  is  authorized 
to  regulate  trade  in  the  districts  subject  to  liis  occupation,  as  his  discretion,  with 
reference  to  the  military  situation,  shall  determine. 

"4.  That  the  President  is  authorized  to  exercise  the  authority  to  regulate  trade 
with  hostile  territory  in  the  absence  of  Congressional  provision  in  regard  thereto." 

—  F.D. 

^  Only  a  few  extracts  are  given  from  the  judgment  of  the  learned  judge.  —  Ed. 


536  EFFECTS   OF   WAR    AS   BETWEEN   ENEMIES.       [PAET  II. 

dollars,  and  planted  and  sowed  it,  but  early  in  Mnrcli  was  driven 
away  by  rebel  soldiers  and  never  returned  to  the  plantation,  except 
once  in  April  following,  after  which  he  came  back  to  Massachusetts. 
The  plaintiff  continued  to  reside  on  the  plantation,  raised  a  crop  of 
cotton  tliere,  and  delivered  it  in  Mississippi  to  the  defendant's  son, 
by  whom  it  was  forwarded  in  the  autumn  of  the  same  year  to  the 
defendant ;  and  he  sold  it  and  retained  the  profits  amounting  to 
nearly  ten  thousand  dollars. 

"The  plaintiff  sues  for  the  unpaid  instalment  of  rent  and  the 
value  of  the  corn.  The  claims  made  in  the  other  counts  of  the  decla- 
ration have  been  negatived  by  the  special  findings  cf  the  jury. 

"The  defendant,  in  his  answer,  denied  all  the  plaintiff's  allegations  ; 
and  at  the  trial  contended  that  the  lease,  having  been  made  during 
the  civil  war,  was  illegal  and  void,  as  well  by  the  principles  of  inter- 
national law,  as  by  the  terms  of  the  act  of  Congress  of  1861,  c.  3,  §  5^ 
and  the  proclamation  issued  by  the  President  under  that  act,  (de- 
claring all  intercourse  with  states  in  rebellion  unlawful),  i   *    *    * 

"  The  result  is,  that  the  law  of  nations,  as  judicially  declared, 
prohibits  all  intercourse  between  citizens  of  the  two  belligerents 
!  which  is  inconsistent  with  the  state  of  war  between  their  countries  ; 
and  that  this  includes  any  act  of  voluntary  submission  to  the  enemy, 
or  receiving  his  protection ;  as  well  as  any  act  or  contract  which 
I  tends  to  increase  his  resources  ;  and  every  kind  of  trading  or  commer- 
cial dealing  or  intercourse,  whether  by  transmission  of  money  or  goods, 
or  by  orders  for  the  delivery  of  either,  between  the  two  countries, 
directly  or  indirectly,  or  through  the  intervention  of  third  persons 
or  partnerships,  or  by  contracts  in  any  form  looking  to  or  involving 
such  transmission,  or  by  insurances  upon  trade  with  or  by  the  enemy. 
Beyond  tlie  principle  of  these  cases  the  prohibition  has  not  been  car- 

1  Gray,  J.,  then  reviews  the  authorities  on  tlie  subject  at  great  length.  The  fol- 
lowing are  the  principal  cases  reviewed  :  — 

The.  Hoop,  1799,  1  C.  Hob.  196;  Bell  v.  Chapman,  1813,  10  Johns.  183;  Ricord  v. 
Bettenham,  17G5,  1  W.  Black.  5(i3;  Hafchinsonv.  Brock,  1814,  11  Mass.  119;  Sparenhurg 
v.  Bamat>/ne,  1797,  1  B.  &  P.  163;  Putts  v.  Bell,  1800,  8  Term.  R.  548;  Antoine  v. 
Morshead,  1815,  6  Taunt.  237  ;  Willison  v.  Patterson,  1817,  1  Moore,  133;  Exposilo  v. 
Bowden,  1857,  7  El.  &  Bl.  7{>3;  Kennett  v.  Chambers,  1852,  14  How.  38;  Bentzen 
V.  Boyle,  1815,9  Cr.  191;  Prize  Cu.se.s,  18G2,  1  Black,  635;  The  Rapid,  1812,  1  Gall. 
295;  The  Julia,  1813,1  Gall.  594;  The  Emulous,  181-3,  1  Gall.  563;  Brown  v.  U.  S., 
1814,  8  Cr.  110;  The  Jospph,  1813,  1  Gall.  545;  Jecker  v.  Montgomern,  1855,  18  How. 
110;  Hanger  V.  Abbott,  1807,  6  Wall.  532;  Tlie  Ouachita  Cotton,  1867,  6  Wall.  521  ;  U.  S. 
V.  Lane,  1868,  8  Wall.  185;  McKee  v.  U.  S.,  1868,  8  Wall.  163;  Griswo'dv.  Wadding^ 
ton,  1819,  10  Joiins.  4-38;  Mrs.  Alexander's  Cotton,  1864,  2  Wall.  404;  Ex  parte  Bouss- 
tnaker,  1806,  13  Ves.  Jr.  71;  Coolid'je  v.  Inglee,  1816,  13  Mass.  26;  Patau  v.  Nicholson, 
1818,  3  Wiieat.  204  ;  Musson  v.  Fales,  1820,  16  Mass.  332  ;  Capcn  v.  Barrows,  1854, 
1  Gray,  .380  —  Ed. 


CHAP.  TI.]*  KERSHAW   V.   KELSEY.  537 

ried  by  judicial  decision.  The  more  sweeping  statements  in  tlie  text 
books  are  taken  from  the  dicta  which  we  have  ah-eady  examined,  and 
in  none  of  them  is  any  other  example  given  tlian  those  just  men- 
tioned. At  this  age  of  the  M-orld,  when  all  the  tendencies  of  the  law 
of  nations  are  to  exempt  individuals  and  private  contracts  from  in- 
jury or  restraint  in  consequence  of  war  between  their  governments, 
we  are  not  disposed  to  declare  such  contracts  unlawful  as  liave  not 
been  heretofore  adjudged  to  be  inconsistent  with  a  state  of  war. 

"  The  trading  or  transmission  of  property  or  money  wliich  is  pro- 
hibited by  international  law  is  from  or  to  one  of  tlie  countries  at  war. 
An  alien  enemy  residing  in  this  country  may  contract  and  sue  like  a 
citizen.  2.  Kent,  Com.,  63.  When  a  creditor,  although  a  subject  of 
the  enemy,  remains  in  the  country  of  the  debtor,  or  has  a  known 
agent  there  authorized  to  receive  the  amount  of  the  debt,  throughout 
the  war,  payment  then  to  such  creditor  or  his  agent  can  in  no  respect 
be  construed  mto  a  violation  of  the  duties  imposed  by  a  state  of  war 
upon  the  debtor ;  it  is  not  made  to  an  enemy,  in  contemplation  of 
international  or  municipal  law;  and  it  is  no  objection  that  the  agent 
may  possibly  remit  the  money  to  his  principal  in  the  enemy's  coun- 
try;  if  he  should  do  so,  the  offence  would  be  imputable  to  him,  and 
not  to  the  person  paying  him  the  money.  {Conn  y.Penn.,  Peters,  C. 
C,  496;  Benniston  v.  Imhrie,  3  Wash.  C.  C,  396;  WarclY.  Sinith,  7 
Wall.,  447;  Btichanan  v.  Curry,  19  Johns.,  137.) 

"The  same  reasons  cover  an  agreement  made  in  the  enemy's  terri- 
tory to  pay  money  there,  out  of  funds  accruing  there,  and  not  agreed 
to  be  transmitted  from  within  our  own  territory ;  for,  as  was  said  by 
the  Supreme  Court  of  New  York — the  last  case  cited,  '  This  rule  is 
founded  in  pubhc  policy,  which,  forbids,  during  war,  that  money  or 
other  resources  shall  be  transferred  so  as  to  aid  or  strengthen  our 
enemies.  The  crime  consists  in  exporting  the  money  or  property,  or 
placing  it  in  the  power  of  the  enemy. 

"  The  lease  now  in  question  was  inade  within  the  rebel  territory 
where  both  parties  were  at  the  time,  and  would  seem  to  have  con- 
templated the  continued  residence  of  the  lessee  upon  the  demised 
premises  throughout  the  term.  Xo  agreement  appears  to  have  been 
made  as  part  of  a  contract  contemporaneously  with  the  lease,  that 
the  cotton  crop  should  be  transported,  or  the  rent  sent  back,  across 
the  line  between  the  belligerents,  and  no  contract  or  communication 
appears  to  have  been  made  across  that  line,  relating  to  the  lease,  the 
delivery  of  possession  of  the  premises  or  of  the  corn,  or  the  payment 
of  the  rent  of  the  one  or  the  value  of  the  other.  The  subsequent  for- 
warding of  the  cotton  by  the  defendant's  son  from  Mississippi  to 
Massachusetts  may  have  been  unlawful ;  but  that  cannot  affect  the 


538  EFFECTS    OF   WAR   AS   BETWEEN   EISTEMIES.       [PAET  11. 

validity  of  the  agreements  contained  in  the  lease.  Neither  of  these 
agreements  involved  or  contemj^lated  the  transmission  of  money  or 
property,  or  other  communication,  between  the  enemy's  territory  and 
our  own.  We  are  therefore  unanimously  of  opinion  that  they  did 
not  contravene  the  law  of  nations  or  the  public  acts  of  the  govern- 
ment, even  if  the  plantation  was  within  the  enemy's  lines;  and  that 
the  plaintiff,  upon  the  case  reported,  is  entitled  to  recover  the  unpaid 
rent,  and  the  value  of  the  corn."  ^ 


SMALL'S   ADM'R  v.    LUMPKIN'S   EX'X   et  ah. 

CouKT  OF  Appeals  of  Virginia,  1877. 

(28  Grattan,  832.) 

Burks,  J.  In  a  foreign  or  international  war,  from  the  time  it  is 
declared  or  recognized,  all  the  people  in  the  territory  and  subject  to 
the  dominion  of  each  belligerent,  without  regard  to  their  feelings, 
dispositions  or  natural  relations,  become,  in  legal  contemplation,  and 
so  continue  to  the  close  of  hostilities,  the  enemies  of  all  the  people 
resident  in  the  territory  of  the  other  belligerent;  and  all  negotiation, 
trading,  intercourse  or  communication  between  them,  unless  licensed 
by  the  government,  is  unlawful.  Such  a  war,  as  between  the  citizens 
or  subjects  of  the  respective  belligerents,  ipso  facto  dissolves  all  com- 
mercial partnerships  and  all  contracts  wholly  executory  and  requiring 
for  their  continued  existence  commercial  intercourse  or  communica- 
tion; and  while  it  does  not  abrogate^  yet  it  suspends  all  other  exist- 
ing contracts  and  obligations  and  the  remedies  thereon,  and  renders 
all  contracts,  with  rare  exceptions,  entered  into  pending  hostilities, 
illegal  and  void. 

These  familiar  principles  of  public  law,  regulating  conduct  in 
foreign  wars,  have  been  applied  by  the  courts  of  this  country.  State 
and  Federal,  to  the  late  war  between  the  United  States  and  the  Con- 

^  It  is  pcrlmps  not  too  much  to  say  tliat  this  is  tlie  leading  American  case  on  tliis 
subject.  It  lias  been  repeatedly  cited  and  followed  :  Brown  v.  Gardner,  1879,  4  Lea 
(Tenn.),  145  ;  Barton  Co.  v.  Newell,  1880,  6t  Ga.  099  (case  not  cited,  but  same  principle 
involved) ;  Montr/omeri/  v.  U.  S.,  1872,  15  Wall.  395 ;  Williams  v.  Paine,  1897, 1G9  U.  S.  55, 
72,  where  Mr.  Justice  Peckliam,  for  the  court,  said  :  "  In  the  case  of  Kershaw  v.  Kelsey, 
100  Mass.  561,  the  pencral  subject  of  contracts  and  business  entered  into  and  trans- 
acted between  the  citizens  of  tlie  different  States  at  war  with  each  other  is  examined, 
and  the  question  treated  with  great  care  by  Mr.  Justice  Gray  in  delivering  the  opinion 
of  the  Supreme  Judicial  Court  of  Massachusetts,  and  numerous  authorities  are  referred 
to  and  commented  upon  in  the  opinion."  —  Ed. 


CHAP.  II.]        smalt/s  adm'r  V.  lumpkin's  ex'x.  539 

federate  States.  Grlsicohl  v.  Waddington^  16  Johns.  R.  438;  Prize 
Cases,  2  Black's  U.  S.  R.  635;  3Irs.  Alexander's  Cotton,  2  Wall.  U. 
S.  R.  404;  The  William  Barjaletj,  5  Wall.  U.  S.  R.  377;  Hanger  v. 
Abbott,  6  Wall.  U.  S.  R.  532;  Matthews  v.  McStea,  91  U.  S.  Rep. 
(1  Otto),  7;  Billrjerry  v.  Branch  &  Sons,  19  Gratt.  393;  Walker  v. 
Beauchler^  27  Gratt.  511. 

Limited  agencies  in  the  enemy's  country  may  lawfully  continue, 
provided  they  can  be  and  are  exercised  without  intercourse  or  com- 
munication between  the  citizens  or  subjects  of  the  contending  powers 
—  such  as  agencies  to  collect  and  preserve,  but  not  to  transmit  money 
or  property.  Buchanan  v.  Currg,  19  John.  R.  136;  Ward  v.  Smith, 
7  Wall.  U.  S.  R.  447;  Manhattan  Life  Ins.  Co.  v.  Warwick,  20  Gratt. 
614;  Hale  v.  Wall,  22  Gratt.  424;  Mutual  Benefit  Life  Ins.  Co.  v. 
AtwoocVs  Adm'x,  24  Gratt.  497;  The  N.  Y.  Life  Ins.  Co.  v.  Hendren, 
id.  536. 

Such  agencies,  however,  to  be  lawful,  must,  it  seems,  be  created 
before  the  war  begins,  for  there  is  no  power,  it  is  said,  to  appoint  any 
agent  for  any  purpose  after  hostilities  have  actually  commenced,  and 
that  to  this  eifect  are  all  the  authorities.  United  States  v.  Gross- 
mayer,  9  Wall.  U.  S.  R.  72;  United  States  v.  Lapine,  17  Wall.  U.  S. 
R.  602. 

Relying  upon  the  principles  recognized  by  these  authorities,  the 
counsel  for  the  appellant  contends  that  the  decree  complained  of  in 
this  case  is  erroneous  and  should  be  reversed. 

The  bill  of  the  appellant  was  filed  against  the  personal  representa- 
tive and  heirs  at  law  of  Robert  Lumpkin,  to  recover  the  amount  of 
a  bond  alleged  to  have  been  given  by  Lumpkin  in  his  lifetime  to  the 
appellant's  testator,  Thomas  B,  Small.  The  defendants  answered 
that  the  debt  was  paid.  The  chancellor  was  satisfied  that  the  defence 
was  made  good  by  the  proofs,  and  decreed  accordingly;  and  in  this, 
I  think,  he  committed  no  error.  Lumpkin  was  a  citizen  of  Virginia, 
and  died  in  1866.  Small,  a  citizen  of  Maryland,  died  there  in  March, 
1861.  He  left  a  wife  and  two  sons  (minors),  entitled  under  the  laws 
of  Maryland  to  his  estate.  After  the  payment  of  his  debts,  which 
Avere  inconsiderable,  and  two  pecuniary  legacies  given  by  his  will, 
the  estate  was  worth  upwards  of  sixty  thousand  dollars.  The  widow 
and  two  other  persons  qualified  in  Baltimore  as  representatives  of  the 
estate  with  the  will  of  the  testator  annexed.  She  also  qualified  there 
as  guardian  of  the  children.  The  administration  of  the  estate,  except 
the  Lumpkin  debt,  seems  to  have  been  conducted  exclusively  bj""  her 
co-administrators.  The  Lumpkin  bond  was  left  with  her  and  com- 
mitted to  her  sole  management. 

Some  time  during  the  year  1861,  the  exact  date  not  distinctly  ap- 


540  EFFECTS   OF   WAP.   AS   BETWEEN   ENE:>nES.       [PART  U. 

pearing,  C.  W.  Small  (the  elder  of  the  two  sons)  came  to  Virginia 
and  enlisted  as  a  soldier  in  the  Confederate  army,  and  continued  in 
that  service  until  the  end  of  the  war.  While  in  Virginia,  and  during 
the  war,  he  undertook  to  collect,  and  did  collect,  of  Lumpkin,  the 
amount  of  his  bond.  The  greater  part  was  collected  while  he  was 
under  age.  He  became  of  age  on  the  30th  day  of  December,  1863; 
and  on  the  6th  day  of  January,  1864,  he  collected  the  remnant  of  the 
debt,  amounting  to  ^1,875.26.  The  collections  were  all  made  in 
Confederate  currency,  taken  at  its  par  value.  When  he  made  the 
last  collection  he  executed  his  covenant  to  Lumpkin,  reciting  all  the 
payments  made  to  him,  ratifying  the  collections  made  while  he  was  a 
minor,  and  directing  his  guardian  to  charge  him  with  what  he  had 
collected  as  a  part  of  his  distributive  share  of  his  father's  estate, 
acknowledging  the  receipt  thereof  as  if  the  same  had  been  paid  to 
him  by  the  representatives  of  the  estate  on  account  of  his  interest 
therein. 

When  these  payments  were  made,  Lumpkin  (the  debtor)  was  resid- 
ing in  Virginia,  and  Mrs.  Small,  the  guardian  of  her  son  and  repre- 
sentative of  her  husband's  estate,  was  a  resident  of  Maryland. 

In  the  light  of  the  authorities  before  cited,  it  may  be  conceded,  for 
the  purposes  of  this  case,  that  under  the  harsh  rules  of  war,  the 
mother  and  son  are  to  be  considered  as  bearing  to  each  other  the 
unnatural  relation  of  alien  enemies ;  that  the  occasional  correspond- 
ence between  them,  which  is  proved  to  have  taken  place  during  the 
conflict  of  arms  then  raging,  was  forbidden  and  unlawful;^  and  that, 
pending  hostilities,  she  could  confer  no  valid  power  upon  him,  as  her 
agent,  to  make  the  collections  which  he  did  make.  W^itli  this  con- 
cession, however,  it  by  no  means  follows  that  the  payments  made  by 
Lumpkin  to  C.  W.  Small  were  unlawful,  and  that  the  obligation  of 
Lumpkin  to  Small's  estate  was  not  discharged. 

Lumpkin  and  C.  W.  Small  were  both  Confederates,  both  within 
the  territory  and  under  the  dominion  of  the  same  belligerent  power. 
They,  at  least,  were  not  alien  enemies  to  each  other,  and  it  Avas 
therefore  perfectly  competent  for  them  to  deal  and  contract  as  be- 
tween themselves.     They  did  so  deal  and  contract. 

The  war  being  over  he  returned  to  ]\Lavyland,  and  there,  with  his 
mother  and  brother,  the  only  parties  interested  in  the  estate  in  the 
absence  of  Lumpkin,  and  without  his  agency  or  influence,  the  whole 
matter  of  the  Lumpkin  debt  was  satisfactorily  arranged  and  adjusted 
amongst  them.  ]V[rs.  Small  caused  her  accounts,  as  guardian  of  her 
two  children,  to  be  regularly  and  formally  stated,  settled  and  re- 
corded. The  Lumpkin  debt  was  embraced  in  the  settlement,  and 
each  of  the  wards  gave  her  a  full  acquittance  under  seal,  which  was 

1  Sec  last  note  on  next  page.  —  Ed. 


CHAP.  II.]  small's   ADM'li    V.    LUMPKIN's   EX'X.  541 

also  duly  recorded.  This  settlement  appears  to  have  been  complete 
and  linal.  The  parties  were  all  severally  sui  juris,  acted  with  their 
eyes  open,  the  facts  fresh  in  their  recollection,  and  with  a  full  knowl- 
edge of  their  rights. 

If,  therefore,  the  appellants  were  permitted  to  recover  the  amount 
of  the  debt  claimed  of  Lumpkin's  estate,  it  would  be  with  distribu- 
tion to  ]\Ii'3.  Small  and  her  two  sous.  It  has  already  been  distributed 
amongst  them,  as  shown  by  their  own  recorded  admissions.  It  ought 
not  to  be  collected  and  distributed  a  second  time. 

Decree  affirmed.^ 

1  U.  S.  V.  Grossmai/er,  1869,  9  Wall.  72,  clearly  established  this  principle,  which,  as 
seen  in  the  text,  is  of  universal  application.  A  very  interesting  case  to  the  same  effect 
is  Douqlas  (the  minor  children  of  Senator  Stephen  A.  Douglas)  v.  U.  S.,  1878, 14  Ct.  CI.  1, 
In  the  well-considered  case  of  Rodgers  v.  Bass,  1877,  46  Tex.  505,  515,  it  is  said  :  "  It 
cannot  be  questioned  that  it  is  a  universally  recognized  general  rule  of  international 
law  that  war  suspends  for  tlie  time  all  friendly  intercourse  between  citizens  of  hostile 
States;  that  while  it  continues  no  kind  of  business  or  commercial  intercourse  can  be 
legitimately  transacted  or  carried  on  by  citizens  of  the  one  with  those  of  the  other, 
unless  specially  authorized  by  government ;  and  so  general  and  pervading  is  this 
principle,  that  war  is  held  to  dissolve  ipso  facto  commercial  partnerships  existing  at  tlie  ■ 
breaking  out  of  hostilities  between  citizens  of  States  at  war  witli  each  otlier,  and  to  i 
revoke  or  supersede  authority  of  agents  in  regard  to  transactions  not  agreed  upon  and  \ 
in  part  executed,  and  especially  sucli  as  confer  autlmrity  to  buy  and  sell  property.  ( 
But,  nevertheless,  it  seems  to  be  equally  well  settled  that  war  does  not  revoke  or  sus- 
pend autiiority  for  the  collection  of  a  debt,  given  previously  to  the  beginning  of  hos- 
tilities, by  a  citizen  of  one  of  the  liostile  States  to  an  agent,  who,  as  well  as  the 
debtor,  resides  in  the  other.  Clarke  v.  Morey,  10  Johns.,  73  ;  Paul  v.  Christie,  4  H. 
&  McII.  161;  Dennison  v.  hnbrie,  3  Wasli.  C.  C.  396;  Mouseaux  v.  Urqnhart,  19  La. 
485;  Griswold  v.  Waddington,  15  Johns.  64;  Buchanan  v.  Cun-y,  19  id.  137;  Conn.  y. 
Penn.  1  Pet.  496  ;  Word  v.  Smith,  7  Wall.  44  ;  Fisher  v.  Krutz,  9  Kan.  501 ;  Grover  v. 
Carter,  3  Hawk.  .328,  and  cases  previously  cited."  The  court  likewise  holds  that 
payment  might  be  made  in  Confederate  currency.  See,  also,  Filor's  Case,  1867, 
3  Ct.  CI.  25. 

In  Shacklett  v.  Polk,  1875,  51  Miss.  378,  391,  it  is  said  (citing  numerous  authori- 
ties) :  "To  sliow  the  rigor  of  the  principle  of  strict  non-intercourse,  and  for  its  appli- 
cation in  various  circumstances,  we  refer  to  Hoare  v.  Allen,  2  Dall.  102  ;  Brown  v. 
Hiatts,  15  Wall.  177  ;  Potts  v.  Bell,  8  Term.  548  ;  Anioine  v.  Morshead,  6  Taunt.  237  ; 
The  Rapid,  8  Cranch,  155 ;  Coppell  v.  Hall,  7  Wall.  544 ;  United  States  v.  Grossmai/er, 
9  id.  74." 

It  may  not  be  without  interest  to  note  tliat  a  friendly  letter  written  by  Mr.  Caleb 
Cusliing  to  Mr.  Jefferson  Davis,  after  outbreak  of  the  Civil  War,  —  both  liaving  been 
members  of  President  Peirce's  Cabinet,  —  prevented  Cushing's  confirmation  as  Chief 
Justice  of  the  United  States  in  1874  (7  Kichardson,  Messages  and  Papers,  250). — Ed. 


542  EFFECTS    OF    WAR   AS   BETWEEN   EXEIMIES.       [PAET  n. 

DE   JARNETT   et  at.   v.   DE   GIVERSVILLE  et  al. 

Supreme  Court  of  Missouri,  1874. 

(56  Missouri,  440.) 

Wagneb,  Judge^  dslivered  the  opinion  of  the  court. 

In  this  case,  the  petition  sets  out  a  purchase  by  the  plaintiffs  from 
the  defendants,  in  the  year  1857,  of  certain  real  estate  in  the  City  of 
St.  Louis,  and  the  giving  of  notes  for  the  consideration,  secured  by 
deed  of  trust,  payable  in  one,  two,  three  and  four  years,  the  last 
bgcomiug  payable  on  the  30th  of  April,  1861;  a  failure  to  pay  the 
last  note,  and  a  sale  by  the  trustee  in  consequence  on  the  9th  of  June, 
1861,  after  publication  of  notice  as  required  by  the  deed  of  trust.  It 
was  alleged,  that  all  the  notes  were  paid  except  that  which  matured 
on  the  30th  of  April,  1861,  and  that  the  plaintiffs  were  ready  and 
willing  to  pay  this  also,  but  were  prevented  by  a  state  of  war  existing 
at  that  time,  between  the  United  States  of  America,  of  which  Mis- 
souri was  a  part,  and  the  Confederate  States,  of  which  Virginia  was 
a  part;  and  that  the  plaintiffs  were,  in  1857  and  in  1861,  and  during 
the  whole  of  the  war  which  followed,  citizens  and  residents  of  the 
county  of  Caroline,  Ya.  By  reason  of  the  war  existing,  it  was  al- 
leged, the  notice  and  sale  under  the  deed  of  trust  were  fraudulent  and 
void.  It  was  averred,  that  as  soon  as  peace  was  restored,  the  plain- 
tiffs tendered  to  the  purchaser  of  the  laud  the  amount  due  under  the 
deed  of  trust,  which  was  refused,  and  they  prayed  that  the  deed 
made  by  the  trustees  under  the  sale  of  June  9,  1861,  be  set  aside  and 
annulled.  To  this  petition  the  defendants  demurred,  assigning  for 
causes  of  demurrer,  that  the  petition  showed  no  cause  of  action ;  that 
it  appeared  that  at  the  time  the  default  was  made  there  was  no  sus- 
pension of  intercourse  between  the  citizens  of  Virginia  and  those  of 
Missouri,  and  that  even  when  the  sale  was  made  under  the  deed  of 
trust,  there  was  no  such  suspension,  and  that  there  was  no  excuse  for 
the  non-payment  of  the  note  of  the  plaintiffs.  The  court  below  over- 
ruled the  demurrer  and  gave  judgment  for  the  plaintiffs,  and  the  case 
is  brought  up  for  review  on  writ  of  error. 

Whether  there  was  any  real  or  actual  suspension  of  the  relations 
theretofore  existing  prior  to  the  act  of  Congress  of  July  12,  1861, 
empowering  the  President  to  prohibit,  by  proclamation,  all  commer- 
cial intercourse  between  tlie  rebellious  and  the  loyal  States,  and  the 
proclamation  of  the  President  in  pursuance  thereof,  issued  August 
16,  1861,  I  will  not  stop  to  inquire.     The  case  has  been  argued  here 


CHAP.  II.]  BE   JARNETT   V.   DE   GIVERSVILLE.  543 

upou  the  tlieoiy  that,  at  the  time  the  sale  took  place,  Virginia  had 
passed  her  ordinance  of  secession,  and  was  out  of  the  Union,  and  was 
among  the  number  waging  Avar  against  the  general  government.  If 
so,  her  citizens  were  entitled  to  belligerent  rights,  and  were  clothed 
with  all  the  characteristics  of  alien  enemies. 

Since  the  decisions  in  the  Supreme  Court  of  the  United  States  in 
the  cases  of  the  Venice,  2  Wall.  258;  3Irs.  Alexander's  Cotton,  2 
Wall.  404;  Mauran  v.  Insurance  Company,  6  Wall.  1;  Ouachita 
Cotton,  G  Wall.  521;  Hanger  v.  Ahhott,  6  Wall.  532;  Coppell  v.  Hall^ 
7  Wall.  542;  McKee  v.  United  States,  8  Wall.  163;  Uiiited  States  y. 
Grossmai/er,  9  Wall.  72,  the  question  must  be  regarded  as  settled, 
that  the  late  war  between  the  Confederate  States  and  the  United 
States  was  a  public  war;  and  a  war,  not  only  between  the  respective 
governments,  but  between  all  the  inhabitants  of  the  one  territory,  on 
the  one  side,  and  all  the  inhabitants  of  the  other  territory  on  the 
other  side,  so  that  all  the  people  of  each  occupied  the  respective  posi- 
tions of  enemies  during  the  continuance  of  the  war. 

The  consequence  of  a  state  of  war  is  the  interruption  and  inter- 
diction of  all  commercial  intercourse,  correspondence  and  dealing 
between  the  subjects  of  the  hostile  countries.  Kent  says  the  inter- 
diction flows  necessarily  from  the  principle  that  a  state  of  war  puts 
all  the  members  of  the  two  nations,  respectively,  in  hostility  to  each 
other,  and  to  suffer  individuals  to  carry  on  a  friendly  and  commercial 
intercourse  while  the  two  governments  were  at  war,  would  be  placing 
the  act  of  government  and  the  acts  of  individuals  in  contradiction  to 
each  other.     1  Kent's  Com.  66. 

As  a  corollary  of  this  doctrine  the  principle  is  well  established  that 
an  alien  enemy  cannot  sue  a  friendly  citizen  in  the  courts  of  the 
latter's  country.  Bac.  Abr.  Alien,  D. ;  Alciywus  v.  Ni(jreu,  4  El.  and 
Bl.  217;  DeWahl  v.  Brautie,  1  H.  &  N.  178;  Whelan  v.  Cook,  29 
Md.  1;  U.  S.  V.  1756  Shares  of  Stock,  5  Blatch.  231.  His  disability 
is  temporary  in  its  nature,  and  personal,  and  founded  upon  reason 
and  policy,  and  in  a  great  measure  upon  necessity.  But  no  such 
reason  or  policy  forbids  judicial  proceedings  against  an  alien  enemy 
in  favor  of  a  friendly  citizen,  and  the  rule  is  therefore  settled  that 
while  an  alien  enemy  may  not  sue,  he  may  be  sued  at  law. 

The  question  has  frequently  been  brought  up  in  our  courts  in 
regard  to  matters  arising  out  of  the  late  rebellion,  and  the  adjudica- 
tions in  the  courts  of  last  resort  have  all  been  in  accordance  with  the 
principles  above  announced. 

In  Mixer  v.  Sibley,  53  111.  61,  it  was  decided  that  when  a  party 
residing  in  the  State  of  Illinois,  holding  a  promissory  note  against  a 
person  residing  in  one  of  the  States  in  rebellion,  in  the  year  1862, 


544  EFFECTS   OF    WAR   AS    BETWEEN   ENEMIES.       [PART  II. 

after  the  act  of  Congress  and  the  President's  prochxiuation  proliibit- 
ing  commercial  intercourse  between  the  adhering  States  and  those  in 
rebellion,  commenced  a  suit  thereon  by  attachment,  which  was  levied 
on  real  estate  situated  in  that  State  belonging  to  the  maker,  and 
obtained  a  judgment,  and  procured  a  sale  to  be  made  of  the  premises 
attached,  that  the  court  had  jurisdiction  of  the  cause,  and  the  judg- 
ment and  proceedings  thereunder  were  valid  and  binding,  notwith- 
standing the  defendant  resided  in  one  of  the  rebellious  States,  and 
the  war  at  the  time  was  in  active  progress. 

In  the  case  of  Dorsey  v.  Kyle,  30  Md.  512,  the  court  holds  that  a 
person  who,  by  his  own  voluntary  act,  assumed  the  attitude  of  an 
alien  enemy  to  his  State,  and  to  the  Government  of  the  United  States, 
going  from  Maryland  to  Virginia  during  the  late  civil  war,  allying 
himself  with  the  Southern  cause  and  joining  the  Confederate  army, 
cannot  claim  exemption  from  process  of  attachment  in  behalf  of  ante- 
cedent creditors  against  his  property  remaining  in  the  State,  on  the 
ground  that  he  was  an  alien  enemy,  and  that  all  legal  remedies  were 
suspended  during  the  period  of  hostilities.  It  is  emphatically  de- 
clared that  neither  reason  nor  policy  forbids  judicial  proceedings 
against  an  alien  enemy  in  favor  of  a  friendly  citizen,  and  therefore 
while  an  alien  enemy  may  not  sue  he  may  be  sued  at  law.  The  same 
question  again  arose  in  Dorsey  v.  Dorsey^  id.  522,  and  the  same  prin- 
ciple was  again  asserted  and  re-aflB.rmed. 

The  same  conclusion  was  arrived  at  in  the  case  of  Thomas  v. 
Mahone,  in  the  Court  of  Appeals  of  Kentucky,  12  Am.  Law  Eeg., 
N.  S.  433.  There  the  civil  code  of  Kentucky  authorized  the  cred- 
itors of  a  citizen  who  departed  from  the  county  of  his  residence  and 
remained  absent  thirty  days  within  the  Confederate  lines,  to  attach 
his  property  and  sell  the  same  for  the  payment  of  their  debts.  The 
plaintiff  left  his  home  and  joined  the  Confederate  service,  and  while 
so  absent  attachments  were  procured  and  his  property  sold,  and  the 
court  held  that  the  fact  that  the  debtor  was  a  soldier  in  the  Confed- 
erate army  would  not  deprive  the  court  of  jurisdiction  under  the 
code.  Lindsay,  J.,  in  delivering  the  opinion  of  the  court,  pointedly 
remarks:  "It  does  not  follow,  because  appellant  was  at  the  time  a 
soldier  in  the  army  of  the  belligerent  power,  and  that  all  unlicensed 
communication  with  him  by  the  people  of  the  States  adhering  to  the 
Federal  Union  was  inhibited,  not  only  by  the  laws  of  war,  but  by 
express  statute,  that  resident  creditors  might  not  sue  him  in  the 
courts  of  this  State,  and  subject  to  the  judgment  of  their  debts  such 
of  his  property  as  might  be  found  within  the  local  jurisdiction  of  the 
courts  in  which  he  was  sued.  The  right  of  resident  creditors  so  to 
proceed  against  parties  indebted  to  them,  residing  within  the  lines  of 


CHAP,  ir.]  DE   JAENETT   V.   DE   GTVERSVILLB.  545 

the  hostile  power,  and  held  to  be  public  enemies  by  reason  of  their 
participation  in  the  Southern  movement,  was  recognized  by  tlie  Fed- 
eral Congress  in  the  act  of  March  3,  1863,  2  Brightley's  Digest,  1238, 
providing  for  the  seizure  and  confiscation  of  the  property  of  such 
persons." 

In  Crutcher  v.  Hord  and  icife,  4  Bush,  363,  the  same  court  held 
that  a  proceeding  by  a  Kentucky  creditor  to  enforce  his  lien  on  land 
situated  in  that  State  Avas  not  interdicted,  notwithstanding  the  exist- 
ence of  the  war  and  the  residence  of  the  debtors  within  the  Confed- 
erate lines.  The  Supreme  Court  of  tlie  United  States  in  the  case  of 
McVeigh  v.  the  United  States,'^  11  Wall.  259;  after  citing  Alhretclit  v. 
Sussmann^  2  Ves.  and  Bea.  324;  Bacon's  Abridgment  and  Story's 
Equity  PL,  §  53,  for  authority,  says:  "  Whatever  may  be  the  extent 
of  the  disability  of  an  alien  enemy  to  sue  in  the  courts  of  the 
hostile  country,   it  is  clear  that  he  is  liable  to  be  sued." 

It  is  contended  that  the  case  of  Dciai  v.  jVelson,  10  Wall.  158, 
asserts  a  contrary  doctrine.  That  case  was  a  proceeding  within  an 
insurrectionary  district,  but  held  by  the  national  military  forces,  in 
a  court  established  by  military  orders  alone.  It  was  a  })roceeding  to 
foreclose  a  mortgage  on  personal  property,  and  it  was  instituted 
against  parties  who  had  been  expelled  by  military  force  from  their 
residence,  and  who  were  forbidden  absolutely  by  the  order  which 
expelled  them  from  coming  back  again  within  the  lines  of  the  mili- 
tary authority  which  organized  the  court.  They  were  not  voluntarily 
within  the  Confederate  lines,  but  were  sent  there  against  their  will, 
and  inasmuch  as  without  their  consent  and  against  their  will  they 
were  thus  driven  from  their  homes  and  forbidden  to  return  by  the 
arbitrary  act  of  the  military  power,  it  was  held  that  a  judicial  decree 
by  which  their  property  was  sold  during  the  continuance  in  force  of 
this  order  was  void  as  to  them. 

1  "  It  was  likewise  held  in  this  case  that  the  right  to  be  sued  involved  the  right  to 
appear  in  the  suit,  and  tliat,  inasmuch  as  the  court  refused  McVeigli's  appearance  by 
counsel,  the  judgment  of  the  lower  court  was  reversed.  In  the  case  of  C/oAe  v. 
Moreif,  1813,  10  Johns.  69,  so  often  cited  in  the  text,  it  was  held  by  Kent,  C.  J.,  tliat 
aliens  residing  in  the  United  States  at  the  time  of  war  breaking  out  between  their  own 
country  and  the  United  States,  or  who  come  to  reside  in  the  United  States  after  the 
breaking  out  of  war,  under  an  express  or  implied  permission,  may  sue  and  be  stied  as 
in  time  of  peace  ;  that  it  is  not  necessary,  for  this  purpose,  that  sucii  aliens  shoulil  have 
letters  of  safe  conduct,  or  actual  license  to  remain  in  the  United  States,  but  that  license 
and  protection  will  be  implied  from  their  being  suffered  to  remain,  without  being 
ordered  out  of  the  United  States  by  the  executive.  See  Sei/moitr  v.  Bailey,  1872,  f.6  111. 
288,  where  authorities  are  collected.  Consult  U.  S.  v.  One  Hundred  Barrels  of  Cement, 
1862,  27  Fed.  Cas.  292  (Treat,  J.),  for  an  admirable  digest  of  cases  on  alien  enemy. 

Tlie  United  States  as  a  sovereign,  independent  nation  possesses  the  riglit  and  the 
power  to  expel  aliens  on  outbreak  of  war.     Hew  St.  §§  4067-4070.  —  Ed. 

85 


546  EFFECTS    OF   WAR   AS   BETWEEN   ENEiHES.       [PART  H. 

But  in  the  subsequent  case  of  Ludlow  v.  Ramsey,  11  Wall.  581,  it 
was  adjudged  that  the  doctrine  of  Dean  v.  Nelson,  that  a  judicial 
proceeding  on  a  mortgage  carried  on  within  the  Union  lines  against 
a  person  driven,  by  way  of  retaliation  for  outrages  committed  by 
others,  outside  of  those  lines,  and  prohibited  from  returning  within 
them,  did  not  apply  to  a  person  who  went  and  remained  voluntarily 
in  rebellion.  Such  a  person  could  not  complain  of  legal  proceedings 
regularly  prosecuted  against  him  as  an  absentee. 

But  there  is  another  aspect  in  which  this  case  must  be  considered, 
and  which  really  presents  the  principal  point,  and  upon  which  I 
would  have  been  satisfied  to  have  placed  it  had  not  the  counsel  for 
the  defendants  in  error,  plaintiffs  in  the  court  below,  insisted  in 
their  briefs  that  the  war  produced  an  entire  suspension  of  all  pro- 
ceedings whatever  between  the  citizens  of  the  respective  sides  and 
avoided  all  judicial  process.  The  sale  was  made  under  a  deed  of 
trust  containing  an  agreement  that  in  default  of  payment  when  the 
notes  matured,  the  trustee,  upon  giving  the  requisite  notice,  should 
proceed  to  sell  the  property  to  satisfy  the  debt.  It  contained  a  power 
coupled  with  an  interest,  which  was  irrevocable  in  its  character,  and 
when  the  contingency  arose  calling  forth  its  execution,  the  trustee 
was  authorized  to  execute  it  regardless  of  the  status  of  the  grantors 
at  the  particular  time.  So  far  as  the  authority  of  the  trustee  was 
concerned  to  go  on  and  make  a  sale  of  the  property  in  satisfaction  of 
the  debt,  it  made  no  difference  whether  the  grantors  were  in  the 
Confederate  lines  or  in  the  jungles  of  India,  or  even  if  they  were 
dead.  It  may  be  conceded  that  they  were  in  a  place  or  in  a  condi- 
tion where  it  was  phj^sically  impossible  for  notice  to  reach  them,  but 
that  would  not  alter  the  case,  as  the  notice  was  not  designed  to  be 
given  for  their  benefit  in  the  sense  of  notice  to  them.  It  was  in- 
tended to  notify  the  community  that  the  sale  would  take  place  in 
order  that  bidders  might  be  present  to  purchase  the  property. 

In  the  case  of  Beatie  v.  Butler,  21  Mo.  313,  it  appears  that  Beatie 
borrowed  a  certain  sum  of  money,  and,  to  secure  its  payment,  he 
executed  a  mortgage,  on  real  estate,  containing  a  power  of  sale. 
Before  the  note  was  paid  off  Beatie  died,  and  after  his  death  the 
mortgagee  sold  the  property.  Neither  the  widow  nor  children  of 
Beatie  were  notified  of  the  sale.  Afterwards  they  moved  to  set  aside 
the  sale,  but  the  court  denied  the  motion,  holding  that  the  death  of 
the  mortgagor  did  not  extinguish  or  suspend  the  power  of  sale  in  the 
mortgage.  Scott,  J.,  in  writing  the  opinion  of  the  court,  says: 
"The  argument  that  the  death  of  Beatie  should  have  suspended  all 
proceedings  under  the  mortgage,  in  analogy  to  the  suspension  of  all 
process  of  execution  under  the  administration  law  against  the  estate 


CHAP.  II.]  DE   JARNETT    V.   DE   GIVERSVILLE.  647 

of  defendants,  cannot  be  maintained.  The  law  may  suspend  its  own 
process.  As  it  gives  tlie  process,  it  may  regulate  it.  But  deeds  of 
trust,  and  mortgages  with  a  power  of  sale,  arise  from  the  consent  and 
agreement  of  parties,  and  there  is  no  propriety  in  depriving  creditors 
of  tlie  fruits  of  their  foresight  and  caution.  The  statute  of  the  2oth 
of  January,  1847,  is  an  answer  to  the  argument.  That  statute,  not- 
withstanding the  death  of  the  grantor,  in  a  deed  of  trust,  recognizes 
a  right  of  sale  in  the  trustee,  though  it  is  postponed  for  nine  months 
after  the  detith  of  the  maker  of  the  deed. 

The  precise  question  now  under  consideration  arose  in  Harper  v. 
Ely,  58  111.  179,  where  the  court  decided  that  the  remedy  of  the 
holder  of  a  mortgage  in  that  State  to  make  sale  of  the  mortgaged 
premises  in  case  of  default,  under  a  power  in  the  mortgage,  was  in 
nowise  impaired  or  suspended  during  the  existence  of  hostilities  in 
the  late  war  of  the  rebellion,  on  account  of  the  residence  of  the 
mortgagor  and  his  grantee,  subsequent  to  the  mortgage,  within  the 
rebellious  States ;  and  that  the  rule  applied  as  well  to  the  grantee  of 
the  mortgagor,  who  always  resided  within  one  of  the  States,  which, 
after  conveyance  to  him,  joined  in  the  rebellion,  as  to  the  mortgagor 
himself,  who,  after  making  the  mortgage,  left  his  residence  in  one  of 
the  loyal  States  for  the  purpose  of  engaging  in  hostilities  againat  the 
government. 

The  very  recent  decision  of  the  Supreme  Court  of  the  United 
States,  in  JVashingfon  Universltij  v.  Finch,  18  "Wall.  106,  is  in  point. 
In  that  case  the  facts  are  that  Daly  and  Chambers  purchased  of  W. 
G.  Eliot  in  March,  1860,  certain  real  estate  in  the  City  of  St.  Louis, 
and  gave  a  deed  of  trust  to  secure  the  purchase  money.  In  this  deed 
Ranlett  was  trustee.  The  purchasers  were  citizens  and  residents  of 
Virginia.  Ranlett,  as  trustee,  advertised  and  sold  the  premises  in 
December,  1862,  after  the  establishment  of  non-intercourse  between 
the  government  and  Confederate  States.  The  United  States  Circuit 
Court  declared  the  sale  to  be  unlawful  because  of  this  non-inter- 
course, and  set  aside  the  deed  made  by  the  trustee.  The  Supreme 
Court  unanimously  reversed  the  judgment,  and  directed  the  Circuit 
Court  to  dismiss  the  bill.  Mr.  Justice  Miller,  who  wrote  the  opinion, 
in  commenting  upon  Dean  v.  Nelson,  supra,  said  that  the  court  had 
"never  decided  nor  intentionally  given  expression  to  the  idea  that 
the  property  of  citizens  of  the  rebel  States,  located  in  the  loyal 
States,  was,  by  the  mere  existence  of  the  war,  exempt  from  judicial 
process  for  debts  due  to  citizens  in  the  loyal  States  contracted  before 
the  war."  Upon  the  merits  of  the  immediate  case  under  considera- 
tion, the  learned  judge  remarked:  "The  debt  was  due  and  unpaid. 
The  obligation  which  the  trustee  had  assumed  on  a  condition  had 


648  EFFECTS   OF   WAR   AS  BETWEEN  ENEMIES.      [PAKT  H. 

become  absolute  by  the  presence  of  that  condition.  If  the  complain- 
ants had  been  dead,  the  sale  would  not  have  been  void,  for  that 
reason,  if  made  after  the  nine  months  during  which  a  statute  of 
Missouri  suspends  the  right  to  sell  in  such  cases.  If  they  had  been 
in  Japan,  it  would  have  been  no  legal  reason  for  delay.  The  power 
under  which  the  sale  was  made  was  irrevocable.  The  creditor  had 
both  a  legal  and  a  moral  right  to  have  the  power,  made  for  his 
benefit,  executed.  The  enforced  absence  of  the  complainants,  if  it 
be  conceded  that  it  was  enforced,  does  not,  in  our  judgment,  afford  a 
sufficient  reason  for  arresting  his  agent  and  the  agent  of  the  creditor 
in  performing  a  duty  which  both  of  them  imposed  on  him  before  the 
war  began.  *  *  *  The  interest  of  the  complainants  in  the  land  might 
have  been  liable  to  confiscation  by  the  government;  yet  we  are  told 
that  this  right  of  the  creditor  could  not  be  enforced,  nor  the  power  of 
the  trustee  lawfully  exercised.  jSTo  authority  in  this  country,  or  any 
other,  is  shown  us  for  this  proposition.  It  rests  upon  inference  from 
the  general  doctrine  of  absolute  non-intercourse  between  citizens  of 
States  which  are  in  a  state  of  public  war  with  each  other,  but  no  case 
has  been  cited  of  this  kind  even  in  such  a  war. 

"  It  is  said  that  the  power  to  sell  in  the  deed  of  trust  required  a 
notice  of  the  sale  in  a  newspaper;  that  this  notice  was  intended  to 
apprise  the  complainants  of  the  time  and  place  of  sale,  and  that,  as 
it  was  impossible  for  such  notice  to  reach  the  complainants,  no  sale 
could  be  made.  If  this  reasoning  were  sound,  the  grantors  in  such  a 
deed  need  only  go  to  a  place  where  the  newspapers  could  not  reach 
them,  to  delay  the  sale  indefinitely,  or  defeat  it  altogether.  But  the 
notice  is  not  for  the  benefit  of  the  grantor  in  the  sense  of  notice  to 
him.  It  is  only  for  his  benefit,  by  giving  notoriety  and  publicity  of 
the  time,  terms  and  place  of  sale,  and  of  the  property  to  be  sold,  that 
bidders  may  be  invited,  competition  encouraged,  and  a  fair  price 
obtained  for  the  property.  As  to  the  grantor,  he  is  presumed  to  know 
that  he  is  in  default,  and  his  property  liable  to  sale  at  any  time,  and 
no  notice  to  him  is  required.  *  *  *  We  are  of  the  opinion  that  the 
sale  by  the  trustee  in  the  case  under  consideration  was  a  lawful  and 
valid  sale,  and  that  complainants'  bill  should  have  been  dismissed." 

This  argument,  it  seems  to  me,  is  unanswerable,  and  is  so  remark- 
ably clear  and  satisfactory,  that  nothing  remains  to  be  added.  The 
judgment  should  be  reversed,  and  the  petition  dismissed.  Judges 
VoRiES  and  Sherwood  concur;  Judges  Naptox  and  Adams  dissent.^ 

^  See,  also,  on  tliis  subject  tlie  case  of  IIai/7nond  v.  Camden,  1883,  22  West  Va.  180, 
in  whicli  authorities  are  cited  at  length  and  discussed.  —  Ed. 


CHAP,  ir.]  FURTADO  V.    RODGERS.  549 

FURTADO  V.  RODGEES. 

CoMMox  Pleas,  1802. 

(3  Bos.  Si-  Pull.  191.) 

This  was  the  case  of  the  ship  Petronelli,  which  sailed  from  Bayonne 
in  France,  Oct.,  1792,  for  Martinique  insured  in  an  English  company, 
the  policy  dating  19th  Oct.,  1792.  The  next  year,  while  still  at  Mar- 
tinique the  war  between  France  and  England  broke  out ;  and  the 
island  of  Martinique  with  all  the  shipping  in  the  harbors  was  cap- 
tured by  the  English.  After  the  peace  of  Amiens  in  1802,  the  owner 
of  the  ship  brought  suit  in  Common  Pleas  in  England,  to  recover 
the  insurance  on  the  ship. 

Judgment, — Lord  Alyaxley,  C.  J. : — 

"As  it  is  of  infinite  importance  to  the  parties  that  this  case  should 
be  decided  as  speedily  as  possible,  and  as  we  entertain  no  doubts 
upon  the  subject,  we  think  it  right  to  deliver  the  judgment  of  the 
court  without  any  further  delay  ;  at  the  same  time  considering  the 
magnitude  of  the  question  we  shall  allow  the  parties  to  convert  this 
case  into  a  special  verdict,  in  order  that  the  opinion  of  the  highest 
court  in  this  kingdom  may  be  taken,  if  it  should  be  thought  nec- 
essary. There  are  two  questions  for  our  consideration :  1st,  whether 
it  be  lawful  for  a  IJritish  subject  to  insure  an  enemy  from  the 
effect  of  capture  made  by  his  own  government  ?  2dly,  whether,  if 
that  be  legal,  the  insurance  in  this  case  having  been  made  previous 
to  the  commencement  of  hostilities  will  make  any  difference?  As 
to  the  first  point,  it  has  been  understood  for  some  years  to  have 
been  the  opinion  of  all  Westminster-Hall,  and  I  believe  of  the  nation 
at  large,  that  such  insurances  are  not  strictly  legal  or  capable  of 
being  enforced  in  a  court  of  justice. 

"  The  cases  upon  the  subject  are  all  brought  into  a  small  compass 
in  the  two  valuable  books  of  Mr.  Park  and  my  Brother  Marshall. 
Mr.  Park  seems  to  consider  the  cases  of  Brandon  v.  Nesbitt  and 
JBristoto  V.  Toilers  as  havhig  decided  the  point ;  but  after  looking 
very  accurately  into  all  the  cases,  I  am  ready  to  admit  that  there  is 
no  direct  determination.  The  above  two  cases  proceeded  on  the 
short  ground  of  alienage,  which  was  sufficient  to  support  the  decision 
of  the  Court  without  entering  into  the  other  question  ;  and  I  do  not 
think  the  latter  words  of  Lord  Kenyon  in  Brandon  v.  JVesbitt, 
applied  as  they  are  to  the  case  of  Ricord  v.  Bettenham,  support 
the  inference  which  has  been  drawn  by  my  Brother  Marshall,  the 


550  EFFECTS   OF   WAK    AS   BETWEEN   ENEMIES.       [PAET  H. 

Law  of  Insurance,  pp.  37,  600,  viz.,  that  his  Lordship  thought  that  a 
policy  effected  previous  to  the  war  might  be  sued  upon  in  the  event 
of  peace,  even  though  the  loss  sustained  by  the  assured  arose  from 
British  capture.  It  is  well  known  that  for  a  considerable  time, 
not  only  some  politicians  entertained  an  opinion  that  insurances  on 
enemy's  property  was  beneficial,  but  that  a  great  Judge  went  so  far 
as  to  try  causes  in  which  this  point  directly  appeared,  and  permitted 
foreigners  in  their  own  names,  and  for  their  own  benefit  during  the 
war,  to  recover  on  policies  of  insurance  on  foreign  goods  against 
British  capture.  The  opinion  of  that  learned  Judge,  as  to  the  policy 
of  such  insurances,  is  well  known,  and  it  was  supposed  he  would 
not  have  sanctioned  them  unless  his  opinion  in  point  of  law  had 
been  equally  favorable.  But  we  have  now  the  best  evidence  that 
his  sentiments  in  that  respect  were  different  from  what  they  were 
supposed  to  be.  Though  he  did  try  causes  upon  such  insurances, 
he  always  entertained  doubts  upon  the  law,  and  endeavored  to 
keep  out  of  sight  a  question  which  might  oblige  him  to  decide  against 
what  he  thought  for  the  benefit  of  the  country.  This  takes  off 
materially  from  the  effect  of  those  cases  which  have  been  cited,  to 
induce  a  supposition  that  the  law  of  England  had  tolerated  such 
insurances.  How  far  it  is  consistent  with  good  faith,  after  so  long 
an  acquiescence,  to  set  up  a  defence  which  the  foreigner  may  say  he 
had  no  reason  to  expect,  is  a  question  for  the  decision  of  defendant 
and  not  that  of  the  Court.  We  can  only  say,  that  althougli  many 
persons  have  recovered  in  such  actions  it  is  equally  true  that  doubts 
have  been  entertained  by  many  persons  as  to  their  right  to  recover, 
and  that  most  of  those  who  were  informed  upon  the  subject  were 
firmly  persuaded  that  the  objection  might  have  been  made  with 
success.  This  affords  a  sufiicient  vindication  to  the  courts  of  this 
country  in  now  deciding  this  point  against  a  foreigner. 

"In  1748  an  act,  21  Geo.  2,  c.  4,  passed  prohibiting  the  insurance 
of  French  ships  and  goods  during  the  war ;  this  was  at  least  a  legis- 
lative declaration  of  the  impolicy  of  such  insurances  at  that  time. 
From  the  expiration  of  that  act  to  the  passing  of  the  33  Geo.  3,  c.  27, 
s.  4,  no  legislative  interference  upon  the  subject  ever  took  place, 
and  previous  to  the  last  mentioned  act  the  policy  in  question  was 
effected.  By  the  terms  of  the  policy,  the  underwriters  certainly  un- 
dertake to  indemnify  the  plaintiff  against  all  captures  and  detentions 
of  princes,  without  any  exception  in  respect  of  the  acts  of  the  gov- 
ernment of  their  own  nation.  The  question  then  is,  whether  the 
law  does  uot  make  that  excepticm,  and  whether  it  bo  competent  to  an 
English  underwriter  to  indemnify  persons  who  may  be  engaged  in 
war  with  his  own  sovereign  against  the  consequences  of  that  war? 


CHAP.  11.]  FURTADO    V.    RODGERS.  651 

We  are  all  of  opinion,  that  on  the  principles  of  the  English  law,  it  is 
not  competent  to  any  subject  to  enter  into  a  contract  to  do  anything 
which  may  he  detrimental  to  the  interests  of  his  own  country ;  and 
that  such  a  contract  is  as  much  prohibited  as  if  it  had  been  expressly 
forbidden  by  an  act  of  parliament.     It  is  admitted  that  if  a  man  con- 
tract to  do  a  thing  which  is  afterwards  prohibited  by  act  of  parlia- 
ment, he  is  not  bound  by  his  contract.    This  was  expressly  laid  down 
in  Breicster  v.  Kitchell^  1  Salk.,  198.     And  on  the  same  principle, 
where  hostilities  commence  between  the  country  of  the  underwriter 
and  the  assured,  the  former  is  forbidden  to  fulfil  his  contract.    With 
respect  to  the  expediency  of  these  insurances,  it  seems  only  necessary 
to  cite  a  single  line  from  Bynkershoek  (Quaes.  Juris.  Pub.  lib,  1,  c. 
21)  and  part  of  a  passage  from  Yalin,  p.  32.     The  former  says, 
'■Sostium periciila  in  se  siiscipere  quid  est  aliud  quam  eorum  commercia 
maritwia  promovere^''  and  the  latter,  speaking  of  the  conduct  of  the 
English  during  the  war  of  1756,  who  permitted  these  insurances, 
says,  '  The  consequence  was,  that  one  part  of  that  nation  restored  to 
us  by  the  effect  of  insurance,  what  the  other  took  from  us  by  the 
rights  of  war.'     Lord  Hardwicke  indeed,  in  Henckle  v.    Tlie  Royal 
Exchange  Assurance  Company,  1  Yes.,  320,  uses  these  words:  'iS!oi 
determination  has  been  that  insurance  on  enemies'  ships  during  the 
war  is  unlawful ;  it  might  be  going  too  far  to  say  all  trading  with 
enemies  is  unlawful,  for  that  general  doctrine  would  go  a  great  way, 
even  where  only  English  goods  are  exported,  and  none  of  the  enemies' 
imported,  which  may  be  very  beneficial.     1  do  not  go  on  a  founda- 
tion of  that  kind,  and  there  have  been  several  insurances  of  this  sort 
during  the  war  which  a  determination  upon  that  point  might  hurt.' 
This  however  is  but  a  doubtful  opinion  as  to  the  legality  of  such  in- 
surances, and  not  very  favorable  to  them.     In  Plancke  v.  Fletcher, 
Lord  Maxsfield  is  certainly  reported  to  have  said,  '  It  is  indifferent 
whether  the  goods  were  English  or  French,  the  risk  insured  extends 
to  all  captures,'  which  seems  at  first  to  go  a  great  Avay  towards  giving 
effect  to  insurances  against  British  capture.    But  we  must  suppose 
this  to  have  been  said  because  the  defendant  did  not  press  the  objec- 
tion;  and  if  the  party  acquiesced,  the  expression  gives  no  more 
weight  to  the  case  than  belongs  to  any  of  the  other  cases  which  have 
been  cited,  such  as  Bermon  v.  Woodbridye,  Eden  v.  Parhinson,  and 
Tyson  v.  Gurney,  in  which  the  question  was  not  raised  at  all.     On 
the  other  hand,  the  cases  of   Brandon  v.   Nesbitt  and  Bristoio  v. 
Towers  certainly  proceed  on  the  ground  of  alienage.     There  is  no 
express  declaration  therefore  of  the  Court  of  King's  Bench,  either 
for  or  against  the  legality  of  such  insurances,  and  the  question  comes 
now  to  be  decided  for  the  first  time.     We  are  all  of  opinion  that  to 


552  EFFECTS    OF   WAR    AS   BETWEEN   ENEMIES.       [PART  II. 

insure  enemies'  property  was  at  the  common  law  illegal,  for  the 
reasons  given  by  the  two  foreign  jurists  (Bynkershoek  and  Valin)  to 
w^hora  I  have  referred.  If  this  be  so,  a  contract  of  this  kind  entered 
into  previous  to  the  commencement  of  hostilities  must  be  equally 
unavailing  in  a  court  of  law,  since  it  is  equally  injurious  to  the  in- 
terests of  the  country  ;  for  if  such  a  contract  could  be  supported,  a 
foreigner  might  insure  previous  to  the  war  against  all  the  evils  in- 
cident to  war.  But  it  is  said  that  the  action  is  suspended,  and  that 
the  indemnity  comes  so  late  that  it  does  not  strengthen  the  resources 
of  the  enemy  during  the  war.  The  enemy  however  is  very  little  in- 
jured by  captures  for  which  he  is  sure  at  some  period  or  other  to  be 
repaid  by  the  underwriter.  Since  the  case  of  Bell  v.  Potts,  it  has 
been  universally  understood  that  all  commercial  intercourse  with 
the  enemy  is  to  be  considered  as  illegal  at  common  law  [though 
previous  to  that  case  a  very  learned  judge  (Mr.  Justice  Buller,  in  Bell 
V.  Gitson,  1  Bos.&  Pull.,  345)  appears  to  have  entertained  doubts  on 
that  subject],  and  that  consequently  all  insurances  founded  on  such 
intercourse  are  also  illegal.  Why  are  they  illegal?  Because  they 
are  in  contravention  of  his  Majesty's  object  in  making  war,  which 
is  by  the  capture  of  the  enemies'  property,  and  by  the  prohibition  of 
any  beneficial  intercourse  between  them  and  his  own  subjects  to 
cripple  their  commerce.  The  same  reasoning  which  influenced  the 
Court  of  King's  Bench  in  their  decision  in  Bell  against  Potts,  seems  de- 
cisive in  the  present  case.  For  it  being  determined  that  during  war 
all  commercial  intercourse  with  the  enemy  is  illegal  at  common  law, 
it  follows  that  whatever  contract  tends  to  protect  the  enemy's  prop- 
erty from  the  calamities  of  war,  though  effected  antecedent  to  the 
war,  is  nevertheless  illegal.  It  has  been  supposed  that  the  doctrine 
which  has  prevailed  respecting  ransom  bills  tends  to  favor  these  in- 
surances ;  but  no  action  was  ever  maintained  upon  a  ransom  bill  in 
a  court  of  common  law  until  the  case  of  Bicord  v.  Bettenham,  3  Bur., 
1734 ;  1  BL,  563,  and  I  have  the  authority  of  Sir  AVra.  Scott  for  saying, 
that  in  the  Admiralty  Court  the  suit  was  always  instituted  by  the 
hostage.  The  case  of  Bicord  v.  Bettenham,  however,  certainly  tended 
to  .show  that  such  an  action  might  be  maintained  in  the  courts  of 
common  law  at  the  suit  of  an  alien  enemy.  In  consequence  of  this, 
a  similar  action  was  brought  in  Cornu  v.  Blackburn  (Doug.,  641),  and 
after  argument,  tlie  Court  of  King's  Bench  held  that  it  might  be 
sustained.  But  in  Anthon  v.  Fisher  (Doug.,  649,  650,  in  notes),  the 
contrary  was  expressly  determined  upon  a  writ  of  error  in  tlie  Ex- 
clic(|uer  Chamber.  I  forbear  to  enter  into  the  arguments  suggested 
at  tlie  bar  in  favor  of  the  defendant,  that  the  law  will  not  enforce  a 
contract  founded  on  a  transaction  detrimental  to  the  public  policy 


CHAP.  II.]  FURTADO  V.    RODGERS.  553 

of  the  state.  The  ground  upon  which  we  decide  this  case  is,  that 
when  a  British  subject  insures  against  captures,  the  law  infers  that 
the  contract  contains  an  exception  of  captures  made  by  the  govern- 
ment of  his  own  country ;  and  that  if  he  had  expressly  insured  against 
British  capture,  such  a  contract  would  be  abrogated  by  the  law  of 
England,  With  respect  to  the  argument  insisted  upon  by  way  of 
answer  to  the  public  inconvenience  likely  to  arise  from  permitting 
such  contracts  to  be  enforced,  viz.,  that  all  contracts  made  Avith  an 
enemy  enure  to  the  benefit  of  the  King  during  the  war,  and  that  he 
may  enforce  payment  of  any  debt  due  to  an  alien  enemy  from  any  of 
his  subjects,  we  think  it  is  not  entitled  to  much  weight.  Such  a 
course  of  proceeding  never  has  been  adopted ;  nor  is  it  very  probable 
that  it  ever  will  be  adopted,  as  w^ell  from  the  difficulties  attending  it, 
as  the  disinclination  to  put  in  force  such  a  prerogative.  The  plaint- 
iff, I  am  sorr}^  to  say,  is  not  entitled  to  a  return  of  premium,  because 
the  contract  was  legal  at  the  time  the  risk  commenced,  and  was  a 
good  insurance  against  all  other  losses  but  that  arising  from  capture 
by  the  forces  of  Great  Britain. 

"  Judgment  for  the  defendant." 

1  See,  further,  the  excellent  case  of  Brandon  v.  Cashing,  1803,  4  East,  410,  in  which 
Ellenborough,  C.  J.,  held  that  an  insurance  on  goods  from  London  to  Bayonne  in 
France,  sliipped  on  board  a  neutral  ship  on  account  and  at  the  risk  of  Frenchmen  before 
the  declaration  of  hostilities  between  Great  Britain  and  France,  but  exported  after- 
wards, cannot  be  enforced  against  the  underwriter  even  after  the  restoration  of  peace, 
to  recover  a  loss  by  capture  of  a  co-belligerent  (though  not  stated  to  be  an  ally)  during 
the  war;  that  every  insurance  on  alien  property  by  a  British  subject  must  be  under- 
stood with  tills  implied  exception  that  it  shall  not  extend  to  cover  any  loss  happening 
during  the  existence  of  hostilities  between  the  respective  countries  of  the  assured  and 
assurer.  Of  this  case,  Mr.  Duer  says  (1  Marine  Insurance,  473)  :  "  Thus,  it  was  finally 
determined,  that  a  supervening  war  between  the  countries  of  the  assurers  and  assured, 
from  the  time  that  it  occurs,  renders  a  prior  insurance  illegal  and  void,  precisely  for 
the  same  reasons  that  render  the  contract  illegal  in  its  origin,  wiien  made  during  a 
war"  Howevei-,  in  the  very  recent  case  of  Driefontein,  ^-c.  Mines,  Lim.  v.  Janson 
[1901],  2  K.  B.  419,  it  was  held  that  the  insurance  of  the  plaintiff's  property  against 
sucli  a  seizure  was  not  against  public  policy  and  the  action  was  maintained.  The 
facts  were :  that  gold,  the  property  of  a  Transvaal  mining  company,  was  insured  with 
British  underwriters  against  capture,  amongst  otlier  risks,  during  transit  from  the 
mines  in  the  Transvaal  to  the  United  Kingdom.  Tlie  gold  was  seized  by  the  govern- 
ment of  tlie  Transvaal,  at  a  time  when  the  Transvaal  troops  were  in  the  field,  and  war 
was  imminent,  althouijh  not  declared. 

In  lo  Harv.  Law  Rev.  237,  the  following  criticism  appears  :  "  Acts  done  in  con- 
templation of  war  are,  if  war  ensues,  regarded  as  if  done  in  time  of  war.  T/ie  Jon 
Frederick.  5  Rob.  128;  The  Boedes  Luxt,  5  Rob.  233.  Tlie  question,  then,  is  wliether  it 
is  against  public  policy  for  an  insurance  company  to  insure  an  alien  enem^'  against 
seizure  of  his  property  by  his  own  government.  No  decided  case  covers  this.  It  lias 
been  held  that  insurance  of  an  enemy's  subject  against  capture  of  his  goods  by  ships 
of  the  insurer's  government  is  void.     Fiirtado  v.  Rodgers,  3  B.  &  P.  191  ;   Gamba  v.  Le 


Crr' 


Yta/t^.i 


654  EFFECTS    OF    WAR   AS    BETWEEN   ENEMIES.       [PART  H. 

PEKKIXS   V.    EOGERS,    1871. 

(35  Indiana,  124,  167.)  ^ 

BusKiRK,  J.  The  foregoing  authorities  clearly  establish  the  fol- 
lowing propositions  :  First,  that  the  war-making  power  is,  by  the  Con- 
stitution, vested  in  Congress,  and  that  the  President  has  no  power  to 
declare  war  or  conclude  peace,  except  as  he  may  be  empowered  by  Con- 
gress. Second,  that  the  existence  of  war  and  the  restoration  of  peace 
are  to  be  determined  by  the  political  department  of  the  government, 
and  that  such  determination  is  binding  and  conclusive  upon  the  courts, 
and  deprives  the  courts  of  the  power  of  hearing  proof  and  determin- 
ing as  a  question  of  fact  either  that  war  exists  or  has  ceased  to  exist. 
Third,  that  the  courts  will  take  judicial  notice  of  the  existence  of 
war  or  the  restoration  of  peace  when  proclaimed  by  the  President. 
Fourth,  that  the  late  rebellion  did  not  become  a  civil  war  and  was  not 
governed  by  the  rules  of  war,  until  the  IGth  of  August,  1S61,  when 
the  President  issued  his  proclamation  under  and  in  pursuance  of  the 
act  of  Congress  of  July  13,  1861.  Fifth,  that  ci\il  war  is  governed 
by  the  same  rules  as  a  foreign  war,  and  that  the  legal  consequences 
are  the  same.  Sixth,  that  the  proclamation  of  the  President  placed 
all  the  inhabitants  of  the  State  of  Louisiana  in  a  state  of  insurrec- 
tion, made  them  the  enemies  of  the  United  States  and  the  inhabitants 
of  the  adhering  States,  and  rendered  all  commercial  intercourse  un- 
lawful, except  such  as  might  be  carried  on  under  and  by  virtue  of  a 
special  license  and  permit  of  the  President  under  the  rules  and  regu- 
lations prescribed  by  the  Secretary  of  the  Treasury.  Seventh,  that 
all  contracts  made  during  the  war  by  belligerents,  and  not  licensed 
and  permitted  by  the  President,  were  absolutely  void.  Eighth,  that 
contracts  made  prior  to  the  war  were  suspended  during  'the  existence 

Mesun'er,  4  East,  407.  The  ground  of  tlie  decisions  was  tliat  a  State  could  not  put  the 
same  pressure  on  its  enemy  if  tlie  enemy  knew  it  could  be  recouped  at  the  end  of  the 
war  by  subjects  of  that  state.  This  principle  applies  with  equal  if  not  greater  force  to 
insurance  on  goods  seized  by  the  government  of  the  assured.  Payment  of  such  in- 
surance would  be  relieving  the  enemy's  subject  from  the  pressure  put  upon  him  by 
liis  own  government  to  carry  on  the  war,  and  would  in  effect  be  paying  the  enemy's 
expenses.  On  principle  and  authority  the  case  is  wrong,  though  it  has  the  practical 
advantage  of  affonling  relief  to  commerce." — Ed. 

1  On  the  question  of  trading  witii  the  enemy  across  the  lines  between  Louisiana 
and  Indiana  during  the  civil  war,  Mr.  Justice  Uuskirk  delivered  an  exceedingly  elabo- 
rate opinion,  in  which  tiie  authorities  are  considere<l  at  length.  It  I'.igests  admirably 
the  doctrines  of  the  previous  sections.  The  part  of  the  opinion  printed  above  con- 
cluded the  judgment  of  the  learned  judge. — Ed. 


CHAP.  II.]  PERKINS    V.    ROGERS.  555 

of  such  war;  that  the  remedy  upon  such  contracts  was  suspended 
until  the  restoration  of  peace,  when  the  debt  and  the  remedy  revived. 
Ninth,  that  during  the  existence  of  the  war  an  inhabitant  of  a  State 
in  rebellion  ha  1  no  right  to  institute  or  maintain  any  suit  in  any 
court  in  the  adhering  States,  and  that,  consequently,  the  Statute  of 
Limitations  did  not  run  against  such  person  during  the  existence  of 
the  war.  Tenth,  that  the  only  legal  effect  of  the  occupation  of  the 
City  of  Xew  Orleans  was  to  authorize  the  President  to  exercise  the 
discretionary  power  vested  in  him  by  the  proviso  to  the  oth  section 
of  act  of  Congress  of  July  13,  1861 ;  that  by  said  act  of  Congress  the 
President  was  authorized  to  license  and  permit  limited  commercial 
intercourse;  that  such  persons  as  had  a  license  and  permit  from  the 
President  might  lawfullj^  trade;  that  such  license  and  permit  did  not 
confer  any  right  beyond  that  of  trading;  that  no  citizen  of  the  State 
of  Louisiana  had  the  lawful  right  to  carry  on  commercial  intercourse 
without  he  had  a  license  and  permit  from  the  President  issued  in 
strict  conformity  to  the  rules  and  regulations  prescribed  by  the  Secre- 
tary of  the  Treasury;  that  such  occupation  did  not  restore  peace  or 
release  the  inhabitants  thereof  from  the  legal  consequences  of  their 
alienage  and  enmity,  or  give  them  a  personal  standing  in  our  courts. 
Eleventh,  that  the  plaintiff,  being  an  inhabitant  of  the  State  of 
Louisiana  during  the  war,  was  the  enemy  of  all  the  inhabitants  of 
Indiana,  and  consequently  had  no  right  during  the  existence  of  the 
war  to  institute  and  maintain  an  action  on  the  contract  sued  on. 
Twelfth,  that  while  the  courts  will  take  judicial  notice  that  all  the 
inhabitants  of  the  State  of  Louisiana  were  in  insurrection,  they  will 
not  take  judicial  notice  that  any  of  such  inhabitants  maintained  a 
loyal  adhesion  to  the  Union  and  Constitution,  or  that  any  part  of 
said  State  was  occupied  and  controlled  by  the  forces  of  the  L'nited 
States  engaged  in  the  dispersion  of  the  insurgents,  or  that  any  par- 
ticular person  had  a  license  or  permit  from  the  President  to  carry  on 
commercial  intercourse,  but  that  a  party  relying  upon  such  facts  must 
allege  and  prove  them.  Thirteenth,  that  while  actual  hostilities 
ceased  in  April,  1865,  peace  with  its  legal  consequences  was  not 
restored  until  the  20th  of  August,  1866,  when  the  President  issued  his 
proclamation  proclaiming  that  peace  existed  throughout  the  land. 
Fourteenth,  that  no  part  of  the  account  sued  on  was  created  during 
the  existence  of  civil  war,  and  when  commercial  intercourse  was 
unlawful.  Fifteenth,  that  the  time  that  intervened  between  the  16th 
of  August,  1861,  and  the  20th  of  August,  1866,  is  not  to  be  included 
in  determining  whether  this  action  is  barred  by  the  statute  of  limi- 
tations, and  that  excluding  such  time  the  action  is  not  barred.  Six- 
teenth, that  when  a  statute  of  limitations  contains  no  exceptions,  and 
it  appears  upon  the  face  of  the  complaint  that  the  action  is  barred, 


556  EFFECTS    OF   'WAR   AS    BETWEEN   EXE>nES.        [PAET  II. 

the  question  can  be  raised  by  demurrer,  but  where  there  are  excep- 
tions, the  statute  must  be  pleaded,  so  as  to  give  the  plaintiff  the 
opportunity  of  replying  the  facts  that  will  bring  it  within  the  excep- 
tion. Seventeenth,  the  conclusions  that  we  have  reached  in  this  case 
render  it  unnecessary  to  examine  the  question  of  wlietiier  this  action 
was  taken  out  of  the  operation  of  the  Statute  of  Limitations  by  a  new 
promise  or  acknowledgment,  further  than  to  saj'  that  when  the  letter 
relied  on  was  written,  war  existed,  which  rendered  the  parties  ene- 
mies, and  made  all  contracts  entered  into  between  them  absolutely 
void. 


StCTiON  30.  —  Duty"  of    Subject   or  Citizen    to    come  home  on  out- 
break OF  AVar. 


Story,  J.,  in  the  brig  Joseph,  1813,  1  Gall.  545,  552:  It  has  been 
farther  argued,  that  a  declaration  of  war  is,  in  effect,  a  command  to 
the  citizens  of  the  belligerent  country  abroad  at  the  time  to  return 
home,  and  tliat  the  law  allows  a  reasonable  time  and  way  to  effect  it. 

I  am  not  aware  of  any  principle  of  public  law  which  obliges  every 
absent  citizea  to  return  to  his  country,  on  the  breaking  out  of  the  war, 
nor  has  any  authority  been  produced  which  countenances  the  position. 
It  may  be  admitted,  that  the  sovereign  power  of  the  country  has  a 
right  to  require  the  services  of  all  its  citizens,  in  time  of  war,  and  for 
this  purpose  may  recall  them  home  under  penalties  for  disobedience. 
But  until  the  sovereign  power  has  promulgated  such  command,  the 
citizens  of  the  country  have  a  perfect  right  to  pursue  their  ordinary 
business  and  trade  in  and  with  all  other  countries,  except  that  of  the 
enemy.  Upon  any  other  supposition  all  foreign  commerce  would,  dur- 
ing war,  be  suspended  ;  for  if  it  were  tlie  duty  of  absent  citizens  to 
return,  it  would,  upon  the  same  principle,  be  the  duty  of  those  at 
home  to  remain  there.  As  to  citizens  in  the  hostile  country,  the  dec- 
laration of  war  imports  a  suspension  of  all  farther  commerce  with 
such  country,  and  obliges  them  to  return,  unless  they  would  be  in- 
volved in  all  the  consequences  of  the  hostile  character.  If  they  wish 
to  return,  they  must  do  it  in  a  manner  which  does  not  violate  the 
laws  ;  and  their  property  cannot  be  removed  with  safety  from  the 
enemy  country  unless  under  the  sanction  of  their  own  government. 

But  even  if  the  position  were  generally  true,  that  is  contended  for, 
the  law  would  never  deem  that  a  reasonable  mode  of  conve3'ing  prop- 
erty home  which  involved  it  in  a  noxious  trade  with  the  public  enemy. 
That  can  never  be  held  to  be  a  reasonable  mode  of  returning  a  ship 
to  the  United  States  which  involves  her  in  a  traffic  forbidden  by  the 
laws. 


CHAP,  ir.]  THE    "  RAPID."  557 

THE   "RAPID." 
Supreme  Court  of  the  United  States,  1814. 

(8  Cranch,  156.) 

This  was  an  appeal  from  the  sentence  of  the  circuit  court,  for  the 
district  of  Massachusetts. 

The  material  facts  in  the  case  were  these. 

Jabez  Harrison,  a  native  American  citizen,  the  claimant  and  ap- 
pellant in  this  case,  had  purchased  a  quantity  of  English  goods  in 
England,  before  the  declaration  of  war  by  the  United  States  against 
that  country,  and  deposited  them  on  a  small  island,  belonging  to  the 
English,  called  Indian  Island,  and  situated  near  the  line  between 
Kova  Scotia  and  the  United  States.  Upon  the  breaking  out  of  the 
war,  Harrison's  agents  in  Boston  hired  the  Rapid^  a  vessel  licensed 
and  enrolled  for  tlie  cod  fishery,  to  proceed  to  the  place  of  deposit 
and  bring  away  the  goods.  The  Rapid  accordingly  sailed  from  Bos- 
ton, on  the  3d  of  July,  1812,  with  Harrison,  the  claimant,  on  board, 
proceeded  to  Eastport,  where  Harrison  was  left,  and  from  thence, 
agreeably  to  Harrison's  orders,  to  Indian  Island,  wliere  the  cargo  in 
question  was  taken  on  board.  On  the  eighth  of  July,  wliile  on  his 
return,  she  was  captured  by  the  Jefferson  Privateer,  on  the  high 
seas,  and  brought  into  Salem.  The  goods,  being  libeled  as  prize, 
and  claimed  by  Harrison  as  his  property,  were  condemned  in  the 
circuit  court  of  Massachusetts  to  the  captors,  on  the  ground  that 
by  "  trading  with  the  enemy,"  they  had  acquired  the  .character  of 
enemies'  property. 

A  claim  was  also  interposed  by  the  United  States,  on  the  ground 
of  a  violation,  by  the  Rap>id^  of  the  non-intercourse  act.  This  claim 
was  also  rejected.  From  the  decree  of  the  circuit  court  the  United 
States  and  Harrison  appealed ;  at  the  trial  before  the  Supreme  Court 
the  government  of  the  United  States  did  not  interpose  its  claim. 

The  Court  dwelt  at  considerable  lengtli  upon  the  general  princi- 
ples of  the  rule  which  prohibited  tradiiig  between  enemies ;  and  as 
there  was  no  question  of  the  observance  of  this  rule  in  international 
law,  this  part  of  the  opinion  is  omitted.  The  claimant  contended, 
however,  that  there  was  not  a  trading  with  the  enemy  in  this  case  ; 
that  on  the  breaking  out  of  war,  every  citizen  had  a  right  to  with- 
draw property  lying  in  the  enemy's  country  and  purchased  before 
the  war.  Only  so  much  of  the  opinion  as  bears  upon  this  point  is 
given. 


558  EFFECTS    OF    WAR   AS   BETWEEN    ENEMIES.        [PAET  II. 

Judgment, — .Johxsox,  J. : — 

« *  *  *  After  taking  this  general  view  of  the  principal  doctrine 
on  this  subject,  we  will  consider  the  points  made  in  behalf  of  the 
claimant  in  this  case,  and,  1.  Whether  this  was  a  trading,  in  the  eye 
of  the  prize  law,  such  as  will  subject  the  property  to  capture? 

"  The  force  of  the  argument  on  this  point  depends  upon  the  terms 
made  use  of.  If  by  trading,  in  prize  law,  was  meant  that  signifi- 
cation of  the  term  which  consists  in  negotiation  or  contract,  this 
case  would  certainly  not  come  under  the  penalties  of  the  rule.  But 
the  object,  policy,  and  spirit  of  the  rule  is  to  cut  off  all  communica- 
tion or  actual  locomotive  intercourse  between  individuals  of  the 
belligerent  states.  Negotiation  or  contract  has,  therefore,  no  nec- 
essary connection  with  the  offence.  Intercourse  inconsistent  with 
actual  hostility,  is  the  offence  against  which  the  operation  of  the 
rule  is  directed ;  and  by  substituting  this  definition  for  that  of  trad- 
ing with  an  enemy,  an  answer  is  given  to  this  argument. 

"  2.  Whether,  on  the  breaking  out  of  a  war,  the  citizen  has  a  right 
to  remove  to  his  own  country  with  his  property,  is  a  question  which 
we  conceive  does  not  arise  in  this  case.  This  claimaint  certainly 
had  not  a  right  to  leave  the  United  States,  for  the  purpose  of  bring- 
ing home  his  property  from  an  enemy's  country ;  much  less  could 
he  claim  it  as  a  right  to  bring  into  this  country,  goods,  the  importa- 
tion of  which  was  expressly  prohibited.  As  to  the  claim  for  the 
vessel,  it  is  founded  on  no  pretext  whatever ;  for  the  undertaking, 
besides  being  in  violation  of  two  laws  of  the  United  States,  was  al- 
together voluntary  and  inexcusable.  With  regard  to  the  importa- 
tions from  Great  Britain  about  this  time,  it  is  Avell  known  that  the 
forfeiture  was  released  on  grounds  of  policy  and  a  supposed  obliga- 
tion induced  by  the  assurances  which  had  been  held  out  by  the 
American  charge  d'affaires  in  England.  But  this  claimant  could 
allege  no  such  excuse. 

"  .3.  On  the  third  point,  we  are  of  opinion  that  the  foregoing  obser- 
vations furnish  a  sufficient  answer. 

"  If  the  right  to  capture  property  thus  offending,  grows  out  of  a 
state  of  war,  it  is  enough  to  support  the  condemnation  in  this  case, 
that  the  act  of  Congress  should  produce  a  state  of  war,  and  that  the 
commission  of  the  privateer  should  authorize  the  capture  of  any 
property  that  shall  assume  the  belligerent  character. 

"  Sucli  a  character  we  are  of  opinion  this  vessel  and  cargo  took 
upon  herself ;  or  at  least,  she  is  deprived  of  the  right  to  prove  her- 
self otherwise. 

"  We  are  aware  that  there  may  exist  considerable  hardship  in  this 
case ;  the  ovvTiers,  both  of  vessel  and  cargo,  may  have  been  uncon- 
scious that  they  were  violating  the  duties  which  a  state  of  war  im- 


CHAP.  IL]  the   "ST.    LAWRENCE."  559 

posed  upon  them.  It  does  not  appear  that  they  meant  a  daring 
violation  eitlier  of  the  laws  or  belligerent  rights  of  their  country. 
But  it  is  the  unenvied  province  of  this  court  to  be  directed  by  the 
head,  and  not  by  the  heart.  In  deciding  upon  principles  that  must 
define  the  rights  and  duties  of  the  citizen  and  direct  the  future  de- 
cisions of  justice,  no  latitude  is  left  for  the  exercise  of  feelhig." 


THE   "ST.    LAWRE:N^CE." 
Supreme  Corux  of  tue  United   States,   1814-1815. 

(8  CrancJi,  434,  and  9  Crunch,  120.) 

This  was  an  appeal  from  the  sentence  of  the  United  States  Circuit 
Court  for  the  district  of  New  Hampshire. 

The  ship  St.  Lawrence  was  captured  on  the  20tli  of  June,  1813, 
and,  with  her  cargo,  libeled  as  prize,  in  the  District  Court  of  Xew 
Hampshire.  On  the  5th  of  JVIay,  1813,  a  license  was  granted  by  the 
privy  council  of  Great  Britain  to  Thomas  White  of  London,  and 
others,  pei-mitting  them  to  export,  direct  to  the  United  States,  an 
enumerated  cargo  in  the  St.  Lawrence,  provided  she  cleared  out  be- 
fore the  last  day  of  that  month.  On  the  80th  of  May,  1813,  she  sailed 
from  Liverpool  for  the  United  States  with  the  cargo  specified  in  the 
license.  Mr.  Alexander  M'Gregor  and  his  family  were  passengers  on 
board. 

It  appeared  from  the  examination  of  Mr.  M'Gregor,  that  he  was 
born  in  Scotland,  was  naturalized  in  the  LTnited  States  in  1795,  had 
lived,  the  last  seven  years,  in  Liverpool,  and  was  returning  in  the 
St.  Lawrence,  with  his  family  to  the  United  States. 

There  were  several  claimants,  but  only  so  much  of  the  case  is 
given  as  refers  to  the  claims  of  M'Gregor  and  Penniman. 

Webster,  for  M'Gregor  and  Penniman,  said  : 

"  We  contend  that  a  distinction  is  to  be  taken  between  an  American 
citizen,  domiciled  in  England  at  the  breaking  out  of  the  war,  with- 
drawing his  funds,  and  an  American  citizen  who  goes  to  England 
after  the  declaration  of  war,  for  the  same  purpose.  That  the  former, 
whether  a  native  or  naturalized  citizen,  has  a  right  (and  perhaps  it 
is  his  duty)  to  return  to  the  United  States  with  his  effects.  If  he 
has  no  such  right,  why  should  the  law  of  nations  have  provided  a 
reasonable  time  for  removing  in  case  of  war  ? 

"This  rule  of  the  law  of  nations  has  been  founded  upon  the  necessity 
of  the  case,  and  upon  the  hardship  which  would  attend  the  want  of 
such  a  rule.    A  citizen  of  one  country  may  lawfully  go  to  any  other 


560  EFFECTS    OF   ^AE    AS    BETWEEN    EXE:\r[ES.        [PAT^T  IT. 

country,  in  time  of  peace,  and  take  up  his  residence  there ;  and  it 
would  be  very  hard  if  he  must  suffer  by  the  sudden  and  unexpected 
breaking  out  of  a  wav — an  event  over  which  he  had  no  control.  A 
neutral  would  be  permitted  to  withdraw  his  funds  in  such  a  case  ; 
and  if  we  should  allow  the  privilege  to  neutrals,  why  should  we  deny 
it  to  our  own  citizens  '?  1  Rob.,  1,  T/te  Yigilantid  1  /  Bos.  and  PuL, 
355,  Bell  V.  Gitson. 

"The  case  of  Escott,  cited  in  The  Hoo}-),  1  Rob.,  165,  196,  may  per- 
haps be  thought  to  make  against  our  claim. 

"  But  the  cases  are  not  alike.  In  that  case,  Escott  sent  for  his  prop- 
erty :  here  M'Gregor  came  with  his. 

"A  character  gained  by  residence,  is  lost  by  non -residence.  "When 
M'Gregor  ceased  to  reside  in  England,  his  character,  if  hostile 
before,  no  longer  continued  hostile.  That  it  was  not  his  intention 
to  continue  his  residence  in  England,  is  clearly  evidenced  by  his 
actual  return  to  the  United  States  with  his  famih'. 

"With  regard  to  his  half  of  the  ship,  we  contend  that  if  he  had  a 
right  to  return,  he  had  a  right  to  use  the  means  necessary  for  that 
purpose — he  had  a  right  to  purchase  a  ship  for  the  conveyance  of 
himself  and  his  family.  So  if  it  was  lawful  for  him  to  withdraw  his 
funds,  he  might  lawfully  invest  those  funds  in  merchandise,  if  he 
could  not  otherwise  withdraw  them.  4  Rob.,  161, 195,  The  Madonna 
delle  Grade  ;  3  Rob.,  11,  12,  The  Indian  Chief;  5  Rob.,  248,  The 
President ;  5  Rob.,  84,00,  Tlie  Ocean;  5  Rob.,  60,  TJie  DianaP 

Judgment : — 

"  It  is  not  the  intention,  to  express  any  opinion  as  to  the  right  of 
an  American  citizen,  on  the  breaking  out  of  hostilities,  to  withdraw 
his  property  purchased  before  the  war,  from  an  enemy  country. 
Admitting  such  right  to  exist,  it  is  necessary  that  it  should  be  ex- 
ercised with  due  diligence,  and  within  a  reasonable  time  after  the 
knowledge  of  hostilities.  To  admit  a  citizen  to  withdraw  property 
from  an  enemy  country,  a  long  time  after  the  war,  under  the  pretence 
of  its  having  been  purchased  before  the  war,  would  lead  to  the  most 
injurious  consequences,  and  hold  out  strong  temptations  to  every 
species  of  fraudulent  and  illegal  traffic  with  the  enemy.  To  such  an 
unlimited  extent  we  are  all  satisfied  that  the  right  cannot  exist. 
The  present  shipment  was  not  made  until  more  than  eleven  months 
had  elapsed  after  war  was  declared ;  and  we  are  all  of  opinion  that  it 
was  then  too  late  for  the  party  to  make  the  shipment,  so  as  to  exempt 
him  from  the  penalty  attached  to  an  illegal  traffic  Avith  the  enemy. 
The  consequence,  is  that  the  property  of  Mr.  renniman  must  be 
condemned. 

"  And  their  decision  is  fatal,  also,  to  the  claim  of  ]\Ir.  M'Gregor. 
Independent,  indeed,  of  the  principle,  there  are  many  circumstances 


CHAP.  II.]  AMOKY   V.    McGREGOR.  561 

in  the  case  unfavorable  to  the  latter  gentleman.  In  the  first  place, 
it  is  not  pretended  that  the  goods  included  in  liis  claim  were  pur- 
chased before  the  war.  In  the  next  place,  he  was  the  projector  of 
the  present  voyage,  and  became,  as  to  one  moiety,  the  charterer  or 
purchaser  of  the  ship.  Nearly  all  the  cargo  consisted  of  goods  belong- 
ing (as  it  must  now  be  deemed)  exclusively  to  British  merchants. 
He  was,  therefore,  engaged  in  an  illegal  traffic  of  the  most  noxious 
nature  ;  a  traffic  not  only  prohibited  by  the  law  of  war,  but  by  the 
municipal  regulations  of  his  adopted  country.  His  whole  property, 
therefore,  embarked  in  such  an  enterprise,  must  alike  be  mliicted 
with  the  taint  of  forfeiture." 


AMORY  AND  OTHERS  v.  McGREGOR. 

Supreme  Court  of  New  York,  1818. 

(15  Johnson,  24.) 

Thompson-,  C.  J.,  delivered  the  opinion  of  the  court.^ 
The  hrst  question  that  arises  is,  whether  this  shipment  was  not 
made  contrary  to  the  non-intercourse  act,  so  that  the  goods  were  there- 
by forfeited,  and  the  plaintiff's  title  gone.  If  the  uon-intercourse  law 
was  in  full  force  and  operation  at  the  time  of  the  shipment,  I  do  not 
see  why  the  principles  which  governed  the  case  of  Fontaine  v.  The 
Phoenix  Insurance  Company,  11  Johns.  Rep.  293,  would  not  apply. 
The  forfeiture  was  incurred  by  the  act  of  putting  the  goods  on  board, 
with  intent  to  import  the  same  into  the  United  States  ;  and,  according 
to  the  principle  adopted  in  that  case,  the  owner  loses  his  right  to  the 
property  immediately  on  the  commission  of  the  act  which  produces 
the  forfeiture.  There  is,  however,  a  distinction  between  the  two 
cases.  Here  the  circumstances  may  warrant  the  conclusion  that  the 
shipment  was  made,  under  an  impression  and  belief  that  the  repeal 
of  the  orders  in  council  would  terminate  the  differences  between  the 
two  nations,  and  that  the  non-intercourse  act  would  not  be  enforced. 
And  the  subsequent  act  of  the  2d  of  January,  1813,  shows  the  reason- 
ableness of  such  opinion  by  remitting  the  forfeiture  in  cases  where 
the  shipment  was  made  under  such  belief.  But  it  has  been  decided, 
in  the  Supreme  Court  of  the  United  States,  that  the  declaration  of  war 
virtually  repealed  and  annulled  the  non-intercourse  act,  as  between  us 
and  Great  Britain.  In  the  case  of  The  Sally,  8  Cranch,  384,  the  court 
say  the  municipal  forfeiture,  under  the  non-intercourse  act,  was  ab- 
sorbed in  the  more  general  operation  of  the  law  of  war.  The  prop- 
erty of  an  enemy  seems   hardly  to  be  within  the   purview  of   mere 

^  Statement  of  facts  omitted,  together  with  last  paragraph  of  the  opinion.  —  Ed. 

36 


662  EFFECTS   OF   WAR   AS   BETWEEN   ENEMIES.       [PAET  11, 

municipal  regulations,  but  is  confiscable  under  the  jus  gentiiun.  If, 
by  the  declaration  of  war,  on  the  18th  of  June,  1812,  the  non-inter- 
course act  ceased  to  be  in  force,  there  was  nothing  making  it  vmlawful 
for  the  plaintiffs  to  import  the  goods  in  question,  except  the  existence 
of  the  war  itself.  The  question  is  then  presented  as  to  the  right  of 
an  American  citizen,  at  the  breaking  out  of  war,  to  withdraw  his  goods 
from  the  enemy's  country.  Whether  these  goods  were  liable  to  British 
capture  is  not  the  question  before  us.  This  branch  of  the  defence 
is  placed  on  the  ground  that  it  was  an  illegal  act,  on  the  part  of  the 
plaintiffs,  to  withdraw  these  goods  ;  and  that,  therefore,  a  court  of 
justice  will  not  enforce  any  contract  growing  out  of  such  illegal  con- 
duct. That  all  trading  with  an  enemy  is  illegal  is  a  general  and  well- 
settled  rule.  The  principle  is  recognized  and  sanctioned,  as  well  by 
the  common  law  as  by  the  maritime  codes  of  all  the  European  nations, 
8  Term.  Rep.  554.  It  is  a  wise  and  salutary  rule  ;  but  it  v/ould  re- 
quire the  most  direct  and  controlling  authority,  to  satisfy  my  mind, 
that  the  mere  act  of  withdrawing  goods  from  the  enemy's  country,  at 
the  breaking  out  of  a  war,  comes  within  the  reason  or  policy  of  the 
rule ;  and  no  case  has  fallen  under  my  observation  that  has  pressed 
the  principle  thus  far.  Several  cases,  in  the  Supreme  Court  of  the 
United  States,  have  been  referred  to  as  containing  that  doctrine  ;  but, 
on  examination,  they  will  not  be  found  to  support  it.  The  case  of  The 
Rapid,  8  Cranch,  155,  has  been  relied  on  as  one  of  the  strongest. 
But  that  case  was  essentially  different  from  the  present,  and  decided 
upon  a  very  distinct  principle.  Harrison,  the  claimant,  who  was  an 
American  citizen,  had  purchased  a  quantity  of  English  goods,  before 
the  declaration  of  war,  and  deposited  them  on  a  small  island  belonging 
to  the  English,  near  the  line  between  the  United  States  and  IS^ova 
Scotia ;  and  after  the  declaration  of  war,  he  sent  a  vessel,  licensed 
and  enrolled  for  the  cod  fishery,  and  brought  the  goods  away,  which, 
on  their  return,  were  captured  by  an  American  privateer,  and  con- 
demned, in  the  Circuit  Court  of  Massachusetts,  for  trading  with  the 
enemy.  On  appeal,  this  sentence  was  affirmed.  Judge  Johnson,  in 
delivering  the  opinion  of  the  court,  expressly  waives  giving  any 
opinion  upon  the  point  now  under  consideration,  although  in  very 
strong  and  emphatic  language  he  interdicts  all  intercourse  with  the 
enemy.  In  a  state  of  war,  he  says,  nation  is  known  to  nation  only 
by  their  armed  exterior,  each  threatening  the  other  with  conquest  or 
annihilation.  The  individuals  who  compose  the  belligerent  states 
exist,  as  to  each  otlier,  in  a  state  of  utter  occlusion.  In  war,  every 
individual  of  one  nation  must  acknowledge  every  individual  of  the 
other  nation  as  his  own  enemy.  Trading,  says  he,  does  not  consist 
in  negotiation,  or  contract,  but  the  object,  policy,  and  spirit  of  the 
rule  is  to  cut  off  all  communication,  or  actual  locomotive  intercourse, 


CHAP.  II.]  AMORY   V.   McGREGOR.  663 

between  individuals  of  the  belligerent  states.  Contract  has  no  con- 
nection with  the  offence.  Intercourse  inconsistent  with  actual  hos- 
tility is  the  offence  against  which  the  operation  of  the  rule  is  directed. 
But,  after  thus  narrowing  all  intercourse,  he  says,  whether  on  the 
breaking  out  of  a  war  the  citizen  has  a  right  to  remove  to  his  own 
country,  witii  his  property,  is  not  the  question  before  the  court.  The 
claimant  had  no  right  to  leave  the  United  States,  for  the  purpose  of 
bringing  home  his  property  from  an  enemy's  country.  This  was  the 
point  on  which  the  decision  turned.  So,  again,  in  the  case  of  The  St. 
Lawrence,  8  Cranch,  434,  the  court  say  they  do  not  mean  to  decide  on 
the  right  of  an  American  citizen,  having  funds  in  England,  to  with- 
draw them,  after  a  declaration  of  war,  or  as  to  the  latitude  which  he 
may  be  allowed  in  the  exercise  of  such  a  right,  if  it  exists.  That 
Judge  Story  did  not  mean  to  be  understood  as  deciding  this  question, 
in  the  case  of  The  Rapid^  is  evident  from  what  fell  from  him  in  the 
case  of  The  St.  Lawrence,  when  again  before  the  court,  9  Cranch,  121 ; 
he  says  that  it  is  not  the  intention  of  the  court  to  express  any  opinion, 
as  to  the  right  of  an  American  citizen,  on  the  breaking  out  of  hostili- 
ties, to  withdraw  his  property,  purchased  before  the  war,  from  an 
enemy's  country.  Admitting  such  a  right  to  exist,  it  should  be  ex- 
ercised with  due  diligence,  and  within  a  reasonable  time  after  the 
knowledge  of  hostilities. 

Thus  it  will  be  seen  that  this  question  never  has  been  decided  in 
the  Supreme  Court  of  the  United  States.  And,  from  the  guarded  and 
cautious  manner  in  which  that  court  has  reserved  itself,  upon  this  par- 
ticular question,  there  is  reason  to  conclude  that,  when  it  is  distinctly 
presented,  it  will  be  considered  as  not  coming  within  the  policy  of  the 
rule  that  renders  all  trading  or  intercourse  with  the  enemy  illegal. 

In  Hallett  &  Boivne  v.  Jenks,  3  Cranch,  219,  the  question  before  the 
court  involved  the  inquiry  as  to  what  circumstances  might  excuse  a 
trading  without  incurring  the  penalties  of  the  non-intercourse  act  of 
1798.  Ch.  J.  Marshall,  in  delivering  the  opinion  of  the  court,  observes 
that,  even  if  an  actual  and  general  war  had  existed  between  this 
country  and  France,  and  the  plaintiff  had  been  driven  into  a  French 
port,  apart  of  his  cargo  seized,  and  he  had  been  permitted  to  sell  the 
residue,  and  purchase  a  new  cargo,  it  would  not  have  been  deemed 
such  a  traffic  with  the  enemy  as  would  vitiate  the  policy  upon  such 
new  cargo.  According  to  this  opinion,  an  actual  trading  with  the 
enemy  may,  under  some  "circumstances,  be  deemed  lawful.  Inde- 
pendent, however,  of  this  general  question,  the  withdrawing  of  the 
goods  in  question  may  very  fairly  be  considered  as  falling  within 
the  principle  settled  by  the  Supreme  Court  of  the  United  States,  in  the 
case  of  TJie  Thomas  Gibbons,  8  Cranch,  421.  It  was  there  held  that 
a  shipment  made,  even  after  a  knowledge  of  the  war,  may  well  be 


564  EFFECTS   OF   WAR  AS   BETWEEN   ENEMIES.       [PAET  IT. 

deemed  to  have  been  made  in  consequence  of  the  repeal  of  the  orders 
in  council,  if  made  within  so  early  a  period,  as  would  leave  a  reason- 
able presumption  that  the  knowledge  of  that  repeal  would  induce  a 
suspension  of  hostilities  on  the  part  of  the  United  States  ;  and  that 
Congress  had  acted  upon  that  principle,  by  the  act  of  the  2d  of  Jan- 
uary, 1813,  ch.  149,  and  fixed  the  time,  15  Sept.,  1812,  before  w-hich 
shipments  might  be  reasonably  made,  upon  the  faith  of  that  presum- 
tion.  The  same  doctrine  is  again  recognized,  and  more  liberally  applied, 
in  the  case  of  The  Mary,  9  Cranch,  147.  The  shipment,  in  the  case 
now  before  the  court,  was  on  the  21st  of  July,  and  before  the  declara- 
tion of  war  was  known  in  England.  From  this  view  of  the  case,  and 
the  law  applicable  to  it,  we  are  satisfied  that  withdrawing  the  goods, 
under  such  circumstances,  could  not  be  considered  an  illegal  act. 

The  next  inquiry  is,  whether  anything,  afterwards,  occurred  to 
exonerate  the  defendant  from  responsibility  upon  the  bill  of  lading ; 
and  we  cannot  perceive  that  there  has.  There  can  be  no  doubt  that 
the  admiralty  proceedings  against  the  property  at  New  Providence, 
after  the  first  release,  were  by  the  procurement  of  the  agents  of  the 
defendant.  The  case  states  that  the  process  was  procured  by  Peter 
,McGregoi-,  who  sailed  on  board  the  vessel  from  Liverpool,  who  was 
the  nephew  of  the  defendant,  and  represented  himself  as  his  agent, 
on  the  suggestion  in  his  petition  that  if  the  goods  were  brought  into 
the  United  States  they  would  be  seized  as  imported  contrary  to  law, 
and  would  be  lost  to  the  owners  and  underwriters,  who  were,  as  he 
alleged,  British  subjects.  But,  upon  claim  and  answer,  put  in  by  the 
master,  the  petition  was  dismissed,  and  the  vessel  and  cargo  again 
liberated ;  and  the  ship  being  about  to  sail,  she  was  again  stopped  by 
a  British  armed  vessel,  by  the  solicitation  and  procurement  of  the 
same  Peter  McGregor,  and  one  William  Stewart,  who  was  on  board 
the  ship  and  proceeding  to  New  Orleans  with  her  as  the  agent  and 
consignee  of  the  defendant,  they  giving  the  captain  of  the  British  ship 
an  indemnity  for  such  seizure.  The  ship  and  cargo  were  then  libelled, 
and  claims  interposed,  by  different  persons,  for  different  parts  of  the 
cargo ;  and  the  goods  in  question  were  claimed  as  the  property  of 
Maitland  &  Co.  The  claimants  all  alleged  that  if  the  goods  Ave  re 
transported  to  New  Orleans,  they  would  be  seized  and  forfeited, 
as  imported  contrary  to  law ;  and,  in  support  of  such  allegation, 
produced  Mr.  Gallatin's  letter  of  the  26th  of  August,  1812,  giving 
instructions  to  the  collectors  on  that  subject.  A  decree  was  then  pro- 
nounced, ordering  the  goods  to  be  given  up  to  the  claimants,  and  they 
were  sold,  and  the  proceeds  disposed  of  as  lias  been  stated.  There  is 
no  i)retence  that  the  ])ersons  who  represented  themselves  to  be  tlie 
agents  of  the  defendant,  and  who  acted  as  such,  were  not  so  in  fact ; 
and  if  so,  he  must  be  answerable  for  their  acts.     Nor  is  it  pretended 


CHAP.  II.]  AMORY   V.   MCGREGOR.  565 

that  the  goods  in  question  belonged  to  Maitland  &  Co.  All  the  repre- 
sentation on  that  subject  was  a  mere  cover  to  get  hold  of  the  property, 
which  it  was  supposed  would  be  seized  and  forfeited,  if  sent  on  to 
New  Orleans.  The  goods  have,  therefore,  been  lost  by  the  act  of  the 
defendant ;  for  if  they  had  gone  on,  and  the  non-intercourse  act  had 
been  considered  in  force,  there  can  be  no  doubt  that,  under  the  act  of 
the  2d  of  January,  1813,  the  forfeiture  would  have  been  remitted; 
for  the  shipment  was  made  within  the  time  limited  by  tliat  act,  and 
under  circumstances  bringing  the  case  expressly  within  its  provisions. 
The  only  remaining  question  is  as  to  the  rule  of  damages  by  which 
the  amount  of  the  recovery  is  to  be  regulated.  This,  we  think,  ought 
to  be  the  net  value  of  the  goods  at  New  Orleans,  the  port  of  delivery. 
That  was  the  rule  adopted  by  this  court,  in  the  case  of  Watliinson  v. 
LaxKjldon^  8  Johns.  Rep.  213.  Judgment  for  the  plaintiffs. 

Clifford,  J.,  in  The  W'dUam  Bagalay,  1866,  5  "Wall.  377,  408, 
duty  of  a  citizen  when  war  breaks  out,  if  it  be  a  foreign  war,  and 
he  is  abroad,  is  to  return  without  delay ;  and  if  it  be  a  civil  war,  and 
he  is  a  resident  in  the  rebellious  section,  he  should  leave  it  as 
soon  as  practicable  and  adhere  to  the  regular  established  govern- 
ment. Domicile  in  the  law  of  prize  becomes  an  important  considera- 
tion, because  every  person  is  to  be  considered  in  such  proceedings  as 
belonging  to  that  country  where  he  has  his  domicile,  whatever  may  be 
his  native  or  adopted  country. 

Personal  property,  except  such  as  is  the  product  of  the  hostile  soil, 
follows  as  a  general  rule  the  rights  of  the  proprietor  •  but  if  suffered  to 
remain  in  the  hostile  country  after  war  breaks  out,  it  becomes  im- 
pressed with  the  national  character  of  the  belligerent  where  it  is  situ- 
ated. Promptitude  is  therefore  justly  required  of  citizens  resident  in 
the  enemy  country,  or  having  personal  property  there,  in  changing 
their  domicile,  severing  those  business  relations,  or  disposing  of  their 
effects,  as  matter  of  duty  to  their  own  government,  and  as  tending  to 
weaken  the  enemy.  Presumption  of  the  law  of  nations  is  against  one 
who  lingers  in  the  enemy's  country,  and  if  he  continues  there  for  much 
length  of  time,  without  satisfactory  explanations,  he  is  liable  to  be 
considered  as  remorant,  or  guilty  of  culpable  delay,  and  an  enemy. ^ 

1  Reaffirmed  in  Gates  v.  Goodloe,  1879,  101  U.  S.  612,  617. 

In  tlie  case  of  the  Gray  Jacket  (1866),  5  Wall.  370,  Mr.  Justice  Swayne,  in  giving 
the  opinion  of  the  court,  said  :  "  The  only  qualification  of  these  rules  (property  coming 
from  the  enemy  country  to  be  condemned)  is  that  when,  upon  breaking  out  of  hos- 
tilities, or  as  soon  after  as  possible,  the  owner  escapes  with  such  property  as  he  can 
take  with  him,  or  in  good  fiiith  thus  early  removes  his  property,  with  the  view  of  put- 
ting it  beyond  the  dominion  of  the  hostile  power,  the  property  in  such  cases  is  exempt 
from  the  liability  which  would  otherwise  attend  it." 

In  the  case  of  Fiftij-two  Bales  Cotton,  Blatchford's  Prize  Cases,  664  (1863),  the  cot- 


566  EFFECTS    OF   WAR   AS   BETWEEN  ENEMIES.       [PAKT  II. 


Section  31. — Ransom   Bills   and   Permissible   Tuauing. 


CORNU   V.   BLACKBURNE. 
King's   Bench,  1781. 

(2  Douglas,  640 ) 

This  was  the  case  of  an  English  vessel  and  cargo  captured  by  a 
French  privateer  and  ransomed  and  a  hostage  taken  as  security ; 
but  the  privateer  was  in  turn  captured  by  two  English  frigates  and 
taken  into  an  English  port.  The  ransom  bill  was  concealed,  how- 
ever, by  the  first  captor,  and  not  given  up ;  and  the  present  suit  is 
on  the  ransom  bill.     This  document  is  as  follows  : 

"  ISTo.  66.  Registered  the  present  ransom  bill  at  the  Admiralty  office,  Boulogne, 
the  25th  October,  1779,  and  delivered  in  double  to  Captain  Eobert  Cornu,  com- 
manding,  the  cutter,  the  Princesse  de  Robecq  privateer,  of  this  port,  by  me  under- 
written Chief  Register.  Signed,  Merlin,  Boulogne  — We  the  underwitten  Robert 
Cornu  of  Boulogne,  commander  of  the  ship  the  Princesse  de  Robecq,  privateer  of 
Boulogne,  and  Thomas  Finchett  of  Liveri)ool,  master  of  the  ship  the  Dolly  of  Liver- 
poole,  have  agreed  as  followeth,  viz. — That  I,  Robert  Cornu,  commander  of  the 
said  privateer,  acknowledge  to  have  ransomed  the  said  ship  the  Dolly  of  Liver- 
poole,  belonging  to  .John  Blackburne,  burgher  of  Liverpoole,  burthen  105  tons, 

ton  was  captured  on  a  flat-boat  fastened  to  a  wharf  in  Texas,  and  belonged  to  a  citizen 
of  New  York,  who  went  to  Texas  before  the  war  to  collect  debts  due  to  him.  Tlie 
proceeds  had  been  invested  in  this  cotton,  with  a  view  to  leave  tlie  hostile  country  after 
the  breaking  out  of  the  war. 

Mr.  Justice  Nelson,  in  the  circuit  court  for  southern  New  York  held  that  "  the  only 
pretext  for  condemnation  is  that  the  property  in  question  was  enemy's  property,  wliich 
I  think  is  not  sustaiued.  It  appears  to  me  that  the  claimant  used  all  diligence  to  col- 
lect his  effects,  with  a  view  to  leave  the  hostile  country,  after  tlie  breaking  out  of  the 
war,  and  is  brouglit  fairly  witliin  the  principle  of  international  law  that  protects  him." 

In  the  case  of  the  Sarah  Starr  and  Cargo,  1863,  Blatcliford,  650,  the  same  judge 
held  that  after  the  breaking  out  of  war,  citizens  of  the  loyal  States  resident  in  the 
States  in  rebellion  should  be  accorded  a  reasonable  time  to  convert  their  property  into 
funds  which  could  be  conveniently  carried,  and  to  withdraw  from  their  business  con- 
nections in  the  enemy's  country.  To  the  same  effect  the  case  of  the  John  Gilpin,  1863, 
Blatcliford,  661,  in  which  Nelson,  J.,  overruled  the  decision  of  the  District  Court. 

Mr.  Justice  Nelson  would  seem  to  be  more  lenient  in  this  class  of  cases  than  the 
majority  of  his  colleagues  on  the  supreme  bench.  In  the  Prize  Cases,  he  dissented 
from  tlie  opinion  of  the  majority,  and  asserted  that  there  could  be  no  illegal  trading 
witli  tiie  enemy  prior  to  the  proclamation  of  the  President,  on  the  16th  of  August,  1801. 

See  further  on  the  removal  of  property  on  the  outbreak  of  war,  the  case  of  the 
Ocean,  5  C.  Robinson,  90  (1804) ;  and  the  President,  5  C.  Robinson,  277  (1804).  —  Ed. 


CHAP,  ir.]  CORNU   V.    BLACKBURNE.  567 

on  the  6th  of  June,  in  the  year  1780,  at  the  heighth  of  Edinburgh,  going  from 
I;ynn  to  Liverpoole  in  England,  under  Englisli  colours,  and  passport  of  said  Eng- 
land, loaded  with  wheat,  for  the  account  of  John  Blackburne,  burgher  of  Liver- 
poole; which  vessel  I  have  agreed  to  i-ansom  for  the  sum  of  1800L  sterling,  to  be 
paid  to  Mr.  Ilauttoullier,  fitter  of  the  said  privateer  at  Dunkirk;  in  consideration 
of  which  I  have  set  the  said  vessel  at  liberty  to  go  to  the  port  of  Liverpoole,  where 
she  is  to  be  arrived  in  the  time  and  space  of  three  months,  after  the  expiration  of 
which  this  present  agreement  shall  not  clear  her  from  being  taken  by  any  other 
privateers.  For  security  of  which  ransom,  I  have  received  for  hostage  on  board 
of  the  said  ship,  John  Butler,  cousin  to  the  captain  of  the  said  vessel,  desiring  all 
friends  and  allies  to  let  safely  and  freely  proceed  the  said  vessel  to  the  port  of 
Liverpoole,  without  any  let  or  molestation,  during  the  said  time  or  course  of  her 
voyage;  and  I,Thomas  Finchett,  owner  of  the  said  ship  and  merchandizes,  have 
voluntarily  submitted  to  the  payment  of  the  said  ransom,  viz.  IHOOI.  sterling;  for 
surety  whereof  I  have  delivered  up  the  said  John  Butler  of  Liverpoole  for  hostage, 
promising  not  to  go  against  the  conditions  of  this  present  contract,  whereof  each 
of  us  have  a  copy  by  us,  whicli  we  have  signed,  with  the  said  hostage.  Signed  on 
board  the  said  ship,  the  Gth  of  June  in  the  year  1780.  And  it  is  furtlier  expressly 
covenanted  and  agreed,  that  I  the  said  Thomas  Finchett  do  bind  and  oblige  myself, 
and  engage  my  vessel  and  cargo,  to  pay  or  cause  to  be  paid  to  the  owners  of  the 
said  privateer,  tlie  full  amount  of  the  said  ransom,  should  the  said  hostage  come 
to  die,  or  to  desert,  or  that  the  said  privateer  should  perish,  or  be  taken  with  the 
hostage  on  board,  icithout  which  condition  the  captain  of  the  said  privateer  would 
not  have  consented  to  the  above  ransom,  which,  in  all  cases  whatsoever,  shall  be 
well  and  truly  paid.— (Signed)  Robert  Cornu.     Thomas  Finchett.     John  Butler." 

Lord  Mansfield  : — "  It  is  sound  policy,  as  well  as  good  morality,  to 
keep  faith  with  an  enemy  in  time  of  war.  This  is  a  contract  which 
arises  out  of  a  state  of  hostility,  and  is  to  be  governed  by  the  law  of 
nations,  and  the  eternal  rules  of  justice.  The  additional  clause  is 
particularly  adapted  to  this  case.  There  is  no  pretext  to  impeach  it, 
on  the  ground  of  fraud  or  extortion.  The  bill  was  registered  before 
the  French  ship  sailed,  with  this  clause  in  it.  Nor  does  any  inference 
arise,  from  its  insertion,  that  the  general  law  was  understood  to  be 
otherwise ;  for  it  is,  also,  stipulated,  that  the  death  of  the  hostage 
shall  not  vacate  the  contract,  which  stipulation  the  parties  must  be 
presumed  to  have  known  to  be  unnecessary,  because  the  decision  in 
Mlcord  v.  Bettenham  was  notorious  over  all  Europe.  Learned  lawyers 
were  written  to  on  that  occasion,  both  in  France  and  Holland,  and 
Mr.  Justice  Blackstoxe  shewed  me  several  letters  he  had  received 
from  abroad,  on  the  subject.  It  is  said,  that,  by  the  law  of  nations, 
the  recapture  puts  an  end  to  the  ransom  bill;  and  the  argument  is, 
that  the  court  of  Admiralty  decrees  salvage  for  retaking  the  ransom 
bill. 

"  But  what  are  the  cases  brought  to  prove  this  position  ?  None  of 
them  were  litigated  but  the  last,  and,  there,  no  ransom  bill  was  forth- 
coming. Upon  what  was  salvage  given  in  that  case  ?  They  seem 
to  have  mistaken  the  nature  of  salvage.     They  seem  to  consider  it 


568  EFFECTS    OF   WAE   AS   BETWEEN   ENEMIES.       [PART  II. 

as  a  debt  which  may  be  exacted.  But  no  man  can  be  compelled  to 
pay  salvage,  unless  he  chooses  to  have  the  property  back.  They 
have  confounded  distinct  subjects.  What  is  the  eighth  part  ct  a 
ransom  bill  ?  Can  the  eighth  part  of  an  hostage  be  claimed  as  salvage  ? 
Could  the  recaptor  make  use  of  the  ransom  bill  ? 

"  Could  he  bring  an  action  on  it  in  the  foreign  captain's  name  ? 
When  the  owner  gets  possession  of  the  ransom  bill,  it  may  be  a  dif- 
ferent consideration.  But  the  present  case  is  clear  on  two  grounds. 
1.  The  special  clause  is  decisive  ;  and,  2.  Independent  of  that  clause, 
there  never  has  been  any  capture  of  the  ransom  bill. 

"  The  authority  from  Grotius  is  very  strong  on  this  last  ground." 
WiLLEs,  and  Ashhubst,  Justices,  "  of  the  same  opinion." 
Btjller,  Justice,  "  of  the  same  opinion. — The  last  ground  goes  all 
the  length ;  for  the  bill  was  never  taken. 

"  The  Postea  to  be  delivered  to  the  plauitiff."  ^ 


THE    '^CUARMmG   NANCY." 
Opinion   of    G.  Hay,  1761. 

{^fars(Ien's  Admiralty  Cases,  398.) 

The  ship  Charming  JSTmicr/  (whereof  James  Fanneson  now  is  or 
lately  was  master)  being  taken  as  prize  by  the  French,  was  with  her 
cargo  ransomed  by  the  master  for  the  sum  of  £  ;   and  Francis 

Burt  and  one  of  the  crew,  whose  name  is  unknown,  consented  to  go 
as  hostages  for  the  payment  of  the  said  ransom ;  in  consequence 
whereof  the  said  ship  and  cargo  were  released.  The  ship  afterwards 
arrived  at  her  destined  port,  and  has  there  unlivered  part  of  her 
cargo,  but  the  said  ransom  has  not  been  paid,  and  the  said  hostages 
still  remain  prisoners.  A  suit  is  intended  to  be  commenced  in  the 
Court  of  Admiralty  by  the  relations  of  Burt  to  compel  the  payment 
of  the  said  ransom,  and  thereby  procure  the  release  of  the  hostage, 
and  it  is  uncertain  whether  the  ship,  and  that  part  of  the  cargo  which 
remains  unlivered  may  be  sufficient  to  answer  the  said  ransom. 

1  The  case  of  Elcord  v.  Bettenham,  3  Burrow,  1734  (1702),  referred  to  by  Lord 
Mansfield,  was  that  of  a  British  ship  captured  and  ransomed  by  a  Frencli  captor,  a 
hostage — Joseph  Bell — being  taken.  The  hostage  died  in  prison  ;  and  the  present 
action  was  subsequently  brought  on  the  ransom  bill  by  the  captor. 

It  was  objected  that,  the  plaintiff  being  an  alien  enemy  at  the  time  of  the  con- 
tract, the  ransom  bill  was  void,  tlie  hostage  alone  being  entitled  to  bring  an  action. 
But  the  court  overruled  these  objections  and  gave  judgment  for  the  plaintiff. — Ed. 


CTTAP.  ir.]  THE    "PATRIXENT."  569 

Query. — "Have  not  Burt's  relations  a  right  to  bring  an  action 
against  the  master,  for  the  performance  of  whose  contract  the 
hostages  became  bound,  as  well  [as]  against  the  ship  and  goods,  so 
that  they  may,  if  necessary,  proceed  against  both  ?  And  can  a  war- 
rant on  such  action  be  refused?  And,  as  the  name  of  the  other 
hostage  is  not  at  present  known,  may  not  such  action  be  entered  in 
the  name  of  Burt  and  company  as  hostages  ?  " 

Anstcer. — "  I  do  not  know  any  instance  of  a  warrant  issuing  against 
the  master  in  such  a  case.  The  ship  and  goods  are  in  the  first  place 
answeral)le  for  the  redemption  of  a  hostage. 

"  These  may  be  arrested,  and  the  suit  may  be  brought  by  Burt's 
relations  on  behalf  of  both  the  hostages,  naming  the  one  and  describ- 
ing the  other  of  name  at  present  unknown." 

G.  Hay,  January  24,  1761. 

"In  the  first  instance  I  thmk  you  cannot  proceed  against  the 
master.  If  the  ship  and  goods  will  not  produce  the  sum  stipulated 
for  the  ransom,  and  you  can  show  that  the  master  fraudulently  ran- 
somed, I  think  he  may  then  be  prosecuted  on  behalf  of  the  hostages." 


THE   'PATRIXENT." 
Opinion   of   William    "Wynne,  1781. 

[Marsden^s  Admiralty  Cases,  398.) 

The  ship  I'atrixent,  Hannibal  Lush,  master,  was  taken  by  an 
American  privateer,  and  was  ransomed  for  £5,500  sterling,  and  an 
hostage  delivered,  who  was  carried  to  America.  For  the  above  sum 
the  captain  of  the  ransomed  sliip  drew  a  bill  upon  Messrs.  John 
Glassford  &  Co.,  merchants  in  Glasgow,  a  copy  of  which  is  under- 
written, who  are  owners  of  the  vessel. 

The  ransom-bill  was  sent  to  Amsterdam,  and  from  thence  remitted 
to  merchants  in  London,  to  recover  the  value  of  it.  When  it  Avas 
first  presented  to  the  gentlemen  upon  whom  it  was  drawn,  they 
offered  £1,000,  part  of  it,  as  the  value  of  the  ship ;  but  it  not  being 
thought  prudent  to  receive  a  part  of  the  money,  their  offer  was  then 
refused :  since  which  the  said  gentlemen,  together  Avith  the  owners 
of  the  cargo,  have  refused  to  pay  the  bill  or  any  part  of  it. 

Your  opinion  is  desired  whether  the  holder  of  this  ransom  bill  can 
maintain  a  suit  in  the  Admiralty  Court  against  the  owners  of  the 
ship  and  cargo  for  tiie  recovery  of  the  sum  for  which  such  bill  was 


570  EFFECTS    OF    WAR   AS   BET^yEEX   ENEMIES.       [PART  II. 

given  ?    And  whether  such  suit  must  be  brought  against  every  in- 
dividual owner  of  tlie  shi]3  and  cargo. 

Copy  of  the  Bill. 

"  £5,500.  On  board  tlie  schooner  Hanna. 

July  26,  1779. 

"  At  ninety  days'  sight  my  second  bill  of  exchange,  first  and  third 
of  the  same  tenor  not  paid,  pay  to  Richard  Jackson  or  order  the  sum 
of  five  thousand  five  hundred  pound  sterling,  for  the  ransom  of  the 
ship  Pati-ixent  and  her  cargo. 

Haxxibal  Lush. 

"  To  Messrs.  Johx  Glassfoed  &  Co., 
"  Merchants,  Glasgow." 

Answer. — "  I  think  that  the  owner  of  this  ransom-bill  may  main- 
tain a  suit  in  the  Court  of  Adnuralty  for  the  recovery  of  the  sura  for 
which  the  bill  was  given  ;  but  I  apprehend  they  must  make  it  appear 
that  the  hostage  is  not  at  liberty,  if  he  is  living,  before  they  can  ob- 
tain payment  of  the  money.  The  proper  way  of  commencing  such  a 
suit  would  be  by  arresting  the  ransomed  ship  Avith  the  cargo  on 
board.  But  if  that  cannot  be  done,  I  think  it  will  be  suflicient  to 
bring  the  suit  against  Lush,  the  master,  who  drew  the  bill,  and 
Messrs.  Glassford  &  Co.,  the  owners  of  the  vessel,  upon  whom  it  is 
drawn." 

"Wii.  Wyxxe,  Doctors'  Commons,  July  25th,  1781.^ 

1  Ransom  Contracts.  —  In  a  subsequent  case,  Anthon  v.  Fisher,  2  Douglas,  G49,  note, 
it  was  settled  in  English  law  tliat  an  alien  enemy  cannot  sue  on  a  ransom  bill  for  want 
of  a  persona  standi  in  judicio. 

And  so  in  the  case  of  The  Hoop,  1  C.  Rob.  201,  Sir  W.  Scott  said,  "  Even  in  the 
case  of  ransoms  which  were  contracts,  but  contracts  arising  ex  jnri  belli,  and  tolerated 
as  such,  the  enemy  was  not  permitted  to  sue  in  liis  own  proper  person  for  the  pa\ment 
of  tlie  ransom  bill;  but  the  payment  was  enforced  by  an  action  by  the  imprisoned 
hostage  in  the  courts  of  his  own  country,  for  tlie  recovery  of  his  freedom.' 

"But  the  efEect  of  such  a  contract,'"  says  Wlieaton,  Ed.  of  18tj3,  p.  G95,  "like  that 
of  every  other  which  may  be  lawfully  entered  into  between  belligerents,  is  to  suspend 
the  character  of  an  enemy,  so  far  as  respects  the  parties  to  the  ransom  bill ;  and,  con- 
sequently, the  technical  objection  of  the  want  of  a  persona  standi  in  judicio  cannot,  on 
principle,  prevent  a  suit  being  brought  by  the  captor,  directly  on  the  ransom  bill." 
And  this  appears  to  be  the  practice  in  the  maritime  courts  of  the  European  continent. 
Valin,  Ord.  de  la  Marine,  liv.  3,  tit.  0,  art.  19 ;  1  Pistoye  et  Duverdy,  280  et  seq. 

"If  the  ransomed  vessel,"  says  Wlieaton,  Ed.  of  1863,  p.  694,  "  is  lost  by  the  perils 
of  the  sea,  before  her  arrival,  the  obligation  to  pay  the  sum  stipulated  for  her  ransom 
is  not  thereby  extinguished.  *  *  *  Even  wliere  it  is  expressly  agreed  that  the  loss  of 
the  vessel  by  these  perils  shall  discharge  the  captured  from  the  payment  of  the  ran- 


CHAP.  II.]         GOODRICH    AND    DE   FOREST   V.    GORDON.  571 


GOODRICH  &   De  forest   v.    GORDON. 
Supreme  Court  of  New  York,  1818. 

(15  Johnson,  G.) 

In  1813,  the  defendant,  jointly  with  certain  other  persons,  was 
owner  of  the  sloop  Hope,  and  he  authorized  one  Napier,  the  master  of 
the  sloop,  to  ransom  the  vessel  in  case  of  capture,  for  a  sum  not  ex- 
ceeding two  thousand  dollars,  and  bound  himself  to  honor  the  bill  if  so 
drawn  upon.  During  the  voyage  The  Ho2)e  was  captured  by  the  Brit- 
ish frigate  Endymion,  and  was  ransomed  by  the  master  pursuant  to 
defendant's  instructions  for  the  sum  of  i$2,000,  for  which  amount  he 
drew  a  bill  upon  the  defendant. 

Thompson,  Ch.  J,,  delivered  the  opinion  of  the  court.  There  can  be 
no  doubt  that  the  contract  for  the  ransom  of  the  vessel  was  a  lawful 
contract.  Such  contracts  are  sanctioned  by  the  laws  of  nations,  and 
are  not  deemed  a  trading  with  the  enemy,  2  Azuni,  313,  nor  was  the 
passport  given  by  the  captors,  upon  the  ransom,  and  accepted  by  the 
master  of  the  captured  vessel,  in  violation  of  the  act  of  Congress,  2d 
August,  1818.  It  was  merely  a  certificate,  given  by  the  captors,  to 
serve  as  a  passport,  and  protect  the  ransomed  vessel  from  all  other 
armed  vessels  belonging  to  the  nation  of  which  the  captors  were  sub- 
jects, and  to  prevent  another  capture,  2  Azuni,  316.  It  may,  perhaps, 
come  within  the  exception  to  the  act  of  Congress  (2d  sec.)  which 
declares  that  the  act  shall  not  prevent  the  acceptance  of  a  passport, 
granted  by  the  commander  of  any  ship  of  war  of  the  enemy,  to  any 
ship  or  vessel  of  the  United  States,  which  may  have  been  captured 
and  given  up,  for  the  purpose  of  carrying  prisoners,  captured  by  the 
enemy,  to  the  United  States.     Admitting,  however,  that  the  instru- 

8oni,  this  clause  is  restrained  to  tlie  case  of  a  total  loss  on  the  high  seas,  and  is  not 
extended  to  shipwreck  or  standing,  which  miglit  afford  the  master  a  temptation 
fraudulently  to  cast  away  his  vessel,  in  order  to  save  the  most  valuable  part  of  tlie 
cargo,  and  avoid  the  payment  of  tlie  ransom.  *  *  *  So,  if  the  captor,  after  having 
ransomed  a  vessel  belonging  to  the  enemy,  is  himself  taken  by  the  enemy,  together 
with  the  ransom  bill,  of  which  he  is  the  bearer,  this  ransom  bill  becomes  a  part 
of  the  capture  made  by  the  enemy  ;  and  the  persons  of  the  hostile  nation  who  were 
debtors  of  tlie  ransom  are  thereby  disciiarged  from  the  obligation." 

On  the  subject  of  ransom  generally,  see  Judge  Story's  opinion  h\  Maisonnnirev. 
Keating,  1815,  2  Gall.  324,  337. 

In  Milkr  v.  Resolution,  1781,  2  Dal).  1,15,  it  was  held  that  ransom  bills  arc  not  con-j 
tracts  with  the  enemy  and  that  they  bind  not  only  contracting  parties  but  also  their' 
allies. 


572  EFFECTS   OF   WAR   AS   BETWEEN   ENEMIES.      [PART  II. 

meiit  given  in  the  case  before  us  is  not  the  one  contemplated  by  this 
provision,  still,  I  think,  the  act  does  not  at  all  extend  to  such  certificates. 
The  only  question  in  this  case,  then,  is,  whether  the  defendant  is 
chargeable  as  an  acceptor  of  this  bill.  In  Plllans  &  Rose  v.  Van 
Mlerop  &  Hopldns,  3  Burr.  1663,  Lord  Mansfield,  and  the  whole 
court  go  the  full  length  of  saying  that  a  promise  to  accept  a  bill  is 
equivalent  to  an  acceptance,  whether  it  be  before  or  after  the  bill  is 
drawn.  Lord  Mansfield,  however,  afterwards,  in  the  case  of  Plerson 
V.  Dunlojj,  Cowp.  573,  in  some  measure,  limits  and  qualities  his  former 
doctrine.  He  observes  that  it  has  been  truly  said,  as  a  general  rule, 
that  the  mere  answer  of  a  merchant  to  the  drawer  of  a  bill,  saying, 
I  will  duly  honor  it,  is  no  acceptance,  unless  accompanied  with  cir- 
cumstances which  may  induce  a  third  person  to  take  the  bill  by  in- 
dorsement ;  but  if  there  are  any  such  circumstances,  it  may  amount 
to  an  acceptance ;  thereby  confining  the  rule  to  cases  where  third 
persons  have  acted  upon  the  faith  of  such  assurances,  and  have  been 
induced,  in  consequence  thereof,  to  take  the  bill.  In  Jolinsonx.  Collins, 
1  East,  98,  the  rule,  as  laid  down  in  Plllans  v.  Van  Mieroj),  is  cer- 
tainly overruled;  and,  from  the  observations  of  the  judges,  the  limita- 
tion and  qualification,  as  contained  in  Plerson  v.  Dunlop,  is  not  either 
sanctioned  or  approbated  ;  nor  am  I  aware  that  it  has  been  expressly 
adopted,  in  any  subsequent  decision,  in  the  Englisli  courts.  But  I 
think  it  may  fairly  be  inferred,  from  the  observations  of  the  late  chief 
justice,  in  McEvers  v.  Mason,  10  Johns.  Rep.  214,  that  the  rule,  as 
laid  down  in  Plerson  v.  Dunlop,  is  approved  of  by  this  court.  It  is 
there  said,  every  one  will  agree  that  an  acceptance  by  a  collateral 
paper  may  be  good ;  and  if  that  paper  be  shown  to  a  third  person,  so 
as  to  excite  credit,  and  induce  him  to  advance  money  on  the  bill,  such. 
third  person  ought  not  to  suffer  by  the  confidence  excited.  Whether 
these  observations  were  intended  to  apply  to  collateral  acceptances  of 
a  bill  already  drawn,  or  to  be  afterwards  drawn,  does  not  appear.  But 
I  cannot  see  any  sound  principle  upon  which  the  cases  can  be  dis- 
tinguished. No  question  of  want  of  consideration  can  arise  in  either 
case,  and  it  is  the  credit,  which  such  acceptance  or  engagement  to 
accept  has  given  to  the  bill,  which  gives  to  it  its  binding  operation. 
The  testimony  in  the  case  before  us  is  very  fall  to  show  that  this 
letter  of  the  defendant,  authorizing  the  drawing  of  the  bill,  accom- 
panied it,  at  all  times,  and  that  it  was  upon  the  credit  of  that  letter 
that  the  bill  was  taken  by  the  plaintiff.  It  appears  to  me  to  be  a 
gross  violation  of  good  faith,  in  the  defendant,  now  to  disclaim  the 
authority  of  the  captain  to  draw  the  bill.  The  letter  may  well  be 
considered  an  authority  to  draw,  accompanied  by  a  promise  to  accept. 
It  was  an  authority  given  for  the  express  purpose  of  enabling  the 


CHAP.  TI.]  ANTOINE   V.    MORSHEAD.  573 

captain  to  draw  the  bill,  which  was  an  act  done  for  the  benefit  of  the 
defendant,  and  according  to  his  instru(;tions;  and  I  think  it  binding 
upon  him  as  an  acceptance  ;  and  this  is  the  opinion  of  the  court.  The 
plaintiff  is,  aec(n'dingly,  entitled  to  judgment. 

Judgment  for  the  plaintiff.^ 


ANTOINE   V.    MOFvSHEAD. 
Common   Pleas,  1815. 

(6  Tuunlon,  332). 

This  was  an  action  upon  five  bills  of  exchange,  all  drawn  by  the 
father  of  the  defendant,  a  British  subject,  on  the  12th  of  September, 
1806,  while  he  was  detained  a  prisoner  at  Verdun  in  France  during 
the  late  war  with  that  country,  payable,  some  to  Tyndall,  some  to 
Estwicke,  both  British  subjects  in  like  manner  detained  prisoners 
there,  at  one  year  after  date,  indorsed  to  the  plaintiff,  who  was  a 
French  subject  and  a  banker  at  Verdun,  and  accepted  by  the  defend- 
ant. The  cause  was  tried  at  Guildhall  at  the  sittings  after  Easter 
terra,  1815,  before  C.  J.,  when  it  was  contended  on  the  part  of  the 
defendant,  that  it  would  be  treason  to  pay  the  bills,  by  the  statute 
34  G.  3,  c.  9,  §§  1,  4.  GiBBs,  C.  J.,  refused  to  hear  the  objection:  he 
did  not  know  to  what  extent  it  might  be  carried,  but  if  it  could  be 
supported  to  its  full  extent,  many  of  our  miserable  fellow-subjects 
detained  in  France  must  have  starved.  It  was  also  objected,  that 
this  being  a  contract  with  an  alien  enemy,  was  not  merely  suspended 
during  the  war,  but  absolutely  void;  the  Chief  Justice  thought 
otherwise,  and  the  jury  found  a  verdict  for  the  plaintiff. 

Vaughan,  Serjt.,  on  a  former  day  in  this  term  moved  for  a  rule 
nisi  on  both  these  objections,  when,  it  being  suggested  on  the  part  of 
the  plaintiff,  that  the  statute  34  G.  3,  c.  9,  had  expired  at  the  peace 
of  1800  and  never  been  re-enacted,  the  court  gave  time  to  ascertain 
that  fact,  and  that  being  found  to  be  the  case,  Vaughan  now  moved 
upon  the  second  objection  only,  namely,  that  the  indorsement  of  the 
bill  to  an  alien  enemy  was  void.  For  this  he  cited  Anthon  v.  Fisher^ 
where  it  is  held  that  no  action  can  be  maintained  by  an  alien  in  the 

1  Vide  Coolidge  v.  Payson,  2  Wlieaton,  66,  in  which  the  Supreme  Court  of  the 
United  States  decided,  "upon  a  review  of  the  cases  which  are  reported,  tliat  a  letter 
written  within  a  reasonable  time,  before  or  after  the  date  of  a  bill  of  exchange,  de- 
scribing it  in  terms  not  to  be  mistaken,  and  promising  to  accept  it,  is,  if  shown  to  the 
person  who  afterwards  takes  tlie  bill,  on  the  credit  of  the  letter,  a  virtual  acceptance, 
binding  tlie  person  who  makes  the  promise." 


574  EFFECTS   OF   WAR   AS   BETWEEN    ENEMIES.        [PAllT  11. 

courts  of  this  country  on  a  ransom  bill,  because  it  is  a  right  claimed 
to  be  acquired  by  him  in  actual  war.  Lord  Ashburton's  argument 
in  Micord  v.  Bettenham^  3  Burr.,  1734,  which  decision  is  overruled 
by  Anthon  v.  Fisher^  is  to  be  called  in  aid.  If  a  bond  be  given  to  an 
alien  enemy,  it  is  good  quoad  the  obligor,  that  is,  it  enures  only  for 
the  benefit  of  the  Crown.  And  if  so  of  a  bond,  the  law  must  be  the 
like  on  a  bill  of  exchange.  So  is  it  of  contracts  of  insurance  made 
with  an  alien  enemy.  Flindt  v.  Waters^  15  East.,  266,  Lord  Ellex- 
BOROUGH,  C.  J.,  says  the  defense  of  alien  enemy  may  go  to  the  con- 
tract itself,  on  which  the  plaintiff  sues,  and  operate  as  a  perpetual 
bar;  though  in  that  case  the  contracting  party  having  become  an 
enemy  after  the  contract,  it  was  held  to  be  only  a  temporary  suspen- 
sion of  the  right  to  sue,  but  he  showed  a  disposition  to  confirm  the 
cases  of  Brandon  v.  N'esbitt,  6  T.  R.,  23,  and  Bristow  v.  Toioers^  6  T.  R., 
35.  No  case  has  decided  that  a  contract  made  with  an  alien  enemy  in 
time  of  war  may  be  ever  afterwards  enforced.  Chief  Baron  Gilbert 
lays  it  down,  that  upon  the  plea  of  alien  enemy  the  right  of  the 
plaintiff  is  forfeited  to  the  crown,  as  a  species  of  reprisal  upon  the 
state  committing  hostility. 

GiBBs,  C.  J.: — "  It  will  not  be  useless  to  consider  what  legal  proposi- 
tions can  be  deduced  from  the  cases  cited  on  behalf  of  the  defendant, 
and  to  try  how  far  they  are  applicable  to  the  present  case.  This  is 
no  bill  of  exchange  drawn  in  favour  of  an  alien  enemy,  but  by  one 
subject  in  favour  of  another  subject,  upon  a  subject  resident  here,  the 
two  first  being  both  detained  prisoners  in  France ;  the  drawer  might 
legally  draw  such  a  bill  for  his  subsistence.  After  the  bill  is  so 
drawn,  the  payee  indorses  it  to  the  plaintiff,  then  an  alien  enemy. 
How  was  he  to  avail  himself  of  the  bill,  except  by  negotiating  it,  and 
to  whom  could  he  negotiate  it,  except  to  the  inhabitants  of  that 
country  in  which  he  resided  ?  I  can  recollect  but  two  principles 
from  the  cases  cited  by  the  counsel  for  the  defendant,  and  they  are 
principles  on  which  there  never  was  the  slightest  doubt.  First,  that 
a  contract  made  with  an  alien  enemy  in  time  of  war  and  that  of  such 
a  nature  that  it  endangers  the  security,  or  is  against  the  policy  of 
this  country,  is  void.  Such  are  policies  of  insurance  to  protect  an 
enemy's  trade.  Another  principle  is,  that  however  valid  a  contract 
originally  may  be,  if  the  party  become  an  alien  enemy  he  cannot  sue. 
The  Crown,  during  the  war,  may  lay  hands  on  the  debt,  and  recover 
it,  but  if  it  do  not,  then,  on  the  return  of  peace  the  rights  of  the  con- 
tracting alien  are  restored,  and  he  may  himself  sue.  No  other  prin- 
ciple is  to  be  deduced.  The  first  may  be  laid  out  of  the  case,  for  this 
was  not  in  its  creation  a  contract  made  with  an  alien  enemy.  The 
second  question  is,  whether  the  bill  came  to  the  hands  of  the  plaintiff 


CHAP.  II.]         CRAWFORD   V.   THE   "  WILLIAM   PENN."  675 

b}^  a  good  title  ?  Under  the  circumstances  of  this  case,  not  meaning 
to  lay  down  any  general  rule  beyond  this  case,  I  am  of  opinion  that 
the  indorsement  to  the  plaintiff  conveyed  to  him  a  legal  title  in 
this  bill,  on  which  the  king  miglit  have  sued  in  the  time  of  the  war, 
and  he  not  having  so  done,  the  plaintiff  might  sue  after  peace  was 
proclaimed." 

Heath,  J.,  was  absent. 

Chambre,  J. — "  I  am  perfectly  of  the  same  opinion,  and  it  would 
be  of  very  mischievous  consequence  if  it  were  otherwise." 

Dallas,  J. — "  This  is  not  a  contract  between  a  subject  of  this 
country  and  an  alien  enemy,  nor  is  it  a  contract  of  that  sort  to  which 
the  principle  can  be  applied.  That  principle  is,  that  there  shall  be 
no  communication  with  the  enemy  in  time  of  war,  but  this  is  a  con- 
tract between  two  subjects  iu  an  enemy's  country,  which  is  perfectly 
legal. 

"  Ruled  refused."  ^ 


CRA\YFOED  et  al.  v.  THE   " WILLI A:\I  PENX." 
United  States  Circuit  Court  for  Pennsylvania  District,  1819. 

(3  Washington,  Circvit  Court,  484.) 

Washington,  Justice,  delivered  the  opinion  of  the  Court :  ^  — 
Having  disposed  of  these  preliminary  points,  we  come  to  the  consid- 
eration of  the  main  question,  —  whether  this  contract,  being  made  with 
an  enemy,  is  void  ? 

The  general  rule  is    admitted,  that  contracts  made   with  an  alien 

1  Accord,  Dauhuz  v.  Morshead,  1815,  6  Taunt.  332.  Tliis  was  an  action  upon  a  bill 
of  exchange  for  £2,020  drawn  by  Sir  John  IMorsliead,  Bart.,  deceased,  at  Verdun, 
wliere  he  had  during  tlie  late  war  been  detained  by  tlie  French  Government,  and 
accepted  by  the  defendant,  his  son,  in  favor  of  Borau  Barti,  and  indorsed  to  the 
plaintiff.  Upon  the  trial  of  the  cause,  at  the  sittings  at  Guild liall  after  Trinity  term, 
1815,  before  Gibbs,  C.  J.,  one  line  of  defence  taken,  and  proved,  was,  that  as  to  all  the 
contents  of  the  bill,  except  .£80,  the  plaintiff  was  only  a  trustee  for  a  alien  enemy.] 
Gibbs,  C.  J.,  without  pronouncing  what  would  become  of  the  money  when  recovered,! 
and  whether  the  Crown  might  or  might  not  lay  hands  on  it,  thought  the  plaintiff 
entitled  to  recover  the  whole  amount,  and  the  jury  accordingly  found  a  verdict  for  the 
plaintiff. 

Lens,  Serjt.,  now  moved  to  set  aside  the  verdict,  and  have  a  new  trial,  not  impugn- 
ing the  direction  of  the  chief  justice,  but  upon  an  affidavit  that  the  bill  was,  given,  as 
to  all,  except  £80,  for  a  gaming  debt;  but  his  affidavit  stating  only  information  and 
belief,  and  tliere  being  evidence  that  the  plaintiff  had  by  letter  asked  for  time,  and 
been  indulged  for  several  years,  the  court  refused  the  rule —  P.D. 

2  For  facts  see  next  case.     Tart  of  opinion  omitted.  — Ed. 


576  EFFECTS    OF   ^VAR   AS   BETWEEN   ENEMIES.       [PART  U. 

enemy  are  void.  Such  is  the  law  of  nations,  and  of  most,  if  not  of 
all,  the  civilized  nations  of  the  world.  The  English  and  American 
decisions  are  positive  in  the  establishment  of  this  doctrine. 

But  to  this,  as  to  most  general  rules,  there  are  exceptions.     Con- 
tracts made  with  an  enemy,  under  the  license  of  the  government,  are 
valid  ;  and  may,  in  certain  cases,  be  enforced  even  during  the  war;  and 
that,  too,  whether  the  contract  arose  directly  or  collaterally  out  of  such 
j   licensed  trade.     80,  if  the  enemy  "with  whom  the  contract  is  made  be 
i   in  the  hostile  country  by  license  of  that  government.     So,  a  ransom 
'    bond,  given  to  an  enemy,  to  procure  the  discharge  of  the  property  and 
the  person  of  the  captured,  we  hold  to  be  valid.     Such  was  decided  to 
I   be  the  law  of  England,  in  the  case  of  Ricard  v.  Bettenham,  3  Burr. 
1734,  and  in  Cornu  v.  Blackburn,  Dougl.  641.     Such,  too,  is  the  law  of 
other  countries  on  the  continent  of  Europe.     We  are  aware  of  the 
decision  in  the  case  of  Anthon  v.  Fisher,  in  the  Exchequer,  which  is  to 
the  contrary,  Dougl.   649,  note  ;    but   never   having  met  with  a  full 
report  of  the  case,  it  is  not  easy  to  understand  what  were  the  partipular 
reasons  which  led  to  that  decision.     How  far  it  may  have  been  influ- 
enced by  the  statute  making  it  criminal  to  give  a  ransom  bond,  which 
had  passed  prior  to  this  decision,  but  after  the  ransom,  is  not  clear. 
At  all  events,  it  was  a  case  decided  long  after  our  Declaration  of  Inde- 
pendence, and  even  after  the  treaty  of  peace ;    and  is  therefore  not 
to  be  considered  as  authority  in  the  courts  of  this  country,  so  as  to 
overrule  the  decision  in  .Ricard  v.  Bettenham,  which  was  made  in  1765. 
There  are  other  cases,  which  are  considered  as  exceptions,  even  in 
England,  where  the  general   rule  is  upheld  with  considerable    rigor, 
founded  upon  the  peculiar  necessity  of  the  case. 

The  case  of  the  Madona  delle  Grade,  4  Eob.,  is,  to  say  the  least  of 
it,  a  very  liberal  relaxation  of  the  general  rule.  It  would  seem,  from 
the  modern  cases,  that  contracts  made  by  prisoners  of  war  in  the 
enemy's  country  have  been  supported.  In  the  case  of  Sparenhunjh  v.  . 
Bannatyne,  1  Bos.  &  Pul.  163,  Chief  Justice  Eyre  observes  that 
"  modern  civilization  has  introduced  great  qualifications  to  soften  the 
rigors  of  war,  and  allows  a  degree  of  intercourse  with  enemies,  and 
particularly  with  prisoners  of  war,  which  can  hardly  be  carried  on 
without  the  aid  of  our  courts  of  justice."  The  other  judges  agree 
with  him. 

Recoveries  at  Nisi  Prius,  we  understand,  are  common,  upon  contracts 
made  with  the  enemy  by  prisoners  of  war,  upon  parol,  for  their  sub- 
sistence.     Willison  V.  Patterson,  East,  term,  1817,  C.  P. 

The  case  of  Antoine  v.  Morchead,  6  Taunt.  237,  is  that  of  a  bill  of 
exchange  drawn  on  England,  in  the  enemy's  country,  by  one  British 
subject,  a  prisoner  of  war,  in  favor  of  another  British  subject,  also  a 


CHAP.  II.]  CRAWFORD    V.    THE   "  WILLIAM    PENN."  677 

prisoner  of  war,  and  by  him  indorsed  to  an  alien  enemy;  in  which 
case  the  contract  was  supported.  It  is  true  that  the  court  seem  to  rely 
very  much  upon  the  circumstance  that  the  original  contract  was  be- 
tween British  subjects.  But  it  is  impossible  not  to  perceive  that  the 
right  of  the  alien  enemy  to  recover  upon  such  bill,  after  the  return  of 
peace,  was  founded  upon  a  new  contract  with  an  alien  enemy,  by  virtue 
of  the  indorsement;  and  that,  if  in  all  cases  a  bill  drawn  by  one  sul> 
ject  in  favor  of  another,  may  pass,  by  indorsement,  into  the  hands  of 
an  alien  enemy,  the  general  rule  of  law  might  be  indirectly  subverted. 
"We  understand  this  case,  therefore,  as  going  the  full  length  of  estal> 
dishing  an  exception  to  the  general  rule,  in  favor  of  prisoners  of  war, 
in  the  country  of  the  enemy,  contracting  for  necessaries.  Chief  Justice 
Gibbs  seems  to  place  it  upon  this  ground ;  by  saying  that,  "  if  the 
objection  could  be  supported,  to  its  full  extent,  many  of  our  miserable 
fellow  subjects,  detained  in  France,  must  have  starved."  The  case  of 
Daxibuz  V.  Morshead,  6  Taunt.  332,  is  a  case  like  the  former,  in 
principle. 

The  principle  on  which  this  doctrine  is  founded  is  strongly  sup- 
ported by  the  decision  of  the  Supreme  Court  of  the  United  States,  in 
the  case  of  Hallet  and  Broioi  v.  Jenks,  3  Cra.  210.^  That  was  the  case 
of  an  insurance  upon  a  cargo,  purchased  at  St.  Domingo,  by  the  owner 
of  an  American  vessel  which  had  been  forced  into  that  island  by  dis- 
tress, and  was  compelled  by  the  government  to  dispose  of  her  outward 
cargo,  with  the  proceeds  of  which  the  cargo  insured  was  purchased. 
The  objection  made  to  the  recovery  was  that  the  cargo  so  insured  was 
purchased  contrary  to  the  express  provisions  of  the  non-intercourse 
law;  and  that  the  trade,  being  therefore  illicit,  the  policy  was  void. 
But  the  Supreme  Court  maintained  the  validity  of  the  contract,  upon 
the  ground  that  the  vessel  having  been  forced  into  the  island  by  a 
cause  which  could  not  be  resisted,  and  the  owner  having  been  compelled 
by  the  government  of  the  country  to  dispose  of  his  cargo,  it  was  not  a 
trading  contrary  to  the  spirit  of  the  law  to  invest  the  proceeds  in  a 
return  cargo. 

Now,  that  was  the  case  of  a  trading  as  expressly  prohibited  by  the 
municipal  laws  of  the  United  States,  as  a  trading  with  the  enemy  is 
by  the  law  of  nations  ;  and  found  its  justification  in  a  necessity,  not 
imperious  and  irresistible,  but  one  which  was  induced  by  a  desire  to 

1  Tliiscase  arose  in  Xew  York,  wlicre  it  is  reported  as  Jenks  <S-  others  v.  Hallet  §• 
Brown,  1803,  1  Gaines'  R.  60,  and  the  next  year  on  appeal  was  unanimously  affirmed 
in  tlie  Court  of  Errors.     Hallet  ^-  Rroim,  1804,  1  Caines  Cases,  60. 

Tiie  transaction  was  likewise  affirmed  in  the  United  States  Supreme  Court,  ns  cited 
in  the  text.  The  cases  were  therefore  carefully  argneil  and  considered,  and  may  be 
taken  as  the  mature  determination  of  the  respective  tribunals.  — Ed. 

37 


578  EFFECTS    OF    AVAR    AS   BETWEEN   ENEMIES.       [PART  H. 

save  propert}'.  The  owner  might  have  avoided  a  breach  of  the  law, 
strictly  construed,  if  he  had  chosen  to  abandon  his  property.  But  the 
court  was  of  opinion  that  he  was  not  bound  to  do  so,  notwithstanding 
the  strong  and  unqualified  expressions  of  the  law.  It  is  difficult  to 
discover  a  difference,  in  principle,  between  that  case  and  the  present. 
In  both,  the  vessel  was  forced  into  a  forbidden  port  by  a  vis  major  — 
in  both,  a  voluntary  trading  was  forbidden  ;  and  in  both,  the  contract, 
which  would  have  been  void,  upon  general  principles  of  law,  was 
predicated  upon  a  necessity,  no  otherwise  indispensable  than  in  order 
to  save  property.  There  is,  indeed,  this  difference  between  the  two 
cases,  which,  however,  is  all  on  the  side  of  the  validity  of  this  con- 
tract ;  —  in  the  former,  the  master  might  have  brought  away  his  vessel 
and  crew,  with  no  other  loss  than  that  of  the  cargo,  and  that,  too,  from 
a  nation  with  which  the  United  States  were  at  peace  ;  whereas  in  the 
latter  the  departure  of  both  depended  upon  the  contract  now  objected 
to,  and  that  from  the  country  of  the  enemy. 

We  cannot  take  leave  of  the  case  just  referred  to  without  citing 
certain  expressions  of  the  chief  justice,  applicable  to  a  case  precisely 
like  the  present.  He  observes  that  "even  if  an  actual  and  general 
war  had  existed  between  this  country  and  France,  and  the  plaintiff  had 
been  driven  into  a  French  port,  and  a  part  of  his  cargo  seized,  and  he 
had  been  permitted  by  the  officers  of  the  port  to  sell  the  residue,  and 
to  purchase  a  new  cargo;  I  am  of  opinion  that  it  would  not  have  been 
deemed  such  a  traffic  with  the  enemy  as  would  vitiate  the  policy  upon 
such  new  cargo."  Had  this  hypothetical  case  been  the  very  case  before 
the  court,  it  would  have  been  directly  in  point,  and  woukl  have  gone 
on  all  fours  with  the  present.  It  corresponds,  however,  in  principle, 
so  precisely  with  the  main  case  decided,  that  the  opinion  of  this  learned 
and  highly  distinguished  judge  is  entitled  to  more  than  ordinary 
respect. 

The  ground  which  the  court  takes  in  deciding  this  case  is,  that  the 
contract  grew  out  of  a  real  necessity,  produced  by  a  state  of  war,  and 
was  itself  the  offspring  of  an  act  of  hostility.  The  vessel  was  captured 
as  prize  of  war,  libelled  as  such,  and  on  account  of  her  having  a  British 
license  on  board  w^as  acquitted.  She  was  disabled  from  availing  her- 
self of  this  discharge  and  returning  to  her  own  country  with  her  crew, 
without  being  repaired  and  victualled.  This  could  no  otherwise  be 
effected  than  by  hypothecating  the  vessel  for  those  repairs  and  out- 
fits. In  a  moral  point  of  view,  therefore,  it  cannot  be  said  that  this 
was  a  voluntary  contract.  The  decision  in  this  case  can  never  be 
relied  on  to  sanction  contracts  with  the  enemy,  under  cover  of  a  pre- 
tended necessity,  or  in  which  there  is  the  slightest  tincture  of  fraud, 
upon  the  general  rule  of  law. 


CHAP.  II.]         CRAWFORD   V.  THE   "  WILLIAM   PENN."  579 

Upon  the  whole,  then,  we  are  of  opinion  that  this  bottomry  bond  is 
not  void  on  the  ground  of  its  being  a  contract  made  with  the  enemy. 

The  next  objection  is  that  this  bond  is  void  —  because  the  asserted 
voyage  to  the  United  States  to  bring  liome  prisoners  was  a  new  voyage  ; 
and  that  the  master  had  no  authority  to  take  up  money  on  the  security 
of  the  vessel,  unless  it  had  been  necessary  to  enable  him  to  complete 
his  original  voyage. 

In  support  of  this  position  the  learned  counsel  referred  to  no 
authority  which  appears  to  bear  upon  it;  and  it  is  certainly  unsupported 
by  reason,  or  by  any  general  principles  of  law.  The  master  is  the 
servant  of  the  owner;  and  from  the  nature  of  his  station  as  such  he 
has  authority  to  enter  into  contracts  for  the  employment  of  the  vessel, 
as  well  as  such  as  relate  to  the  means  of  employing  her.  His  duty  is 
to  obey  the  orders  of  his  owner,  and  to  act  with  fidelity  to  him,  and 
with  a  view  to  his  interest.  He  appears  in  this  character  to  the  world, 
where  it  can  never  be  known,  by  those  who  transact  business  with  him, 
what  may  be  his  private  instructions.  The  consequences  to  commerce 
would  be  disastrous,  indeed,  if  the  owner  whose  ship  is  repaired  and 
fitted  to  perform  a  voyage  by  means  of  advances  made  in  a  foreign  port 
could  relieve  his  propert}'-  from  the  security  given  on  it  by  the  master, 
by  asserting  and  showing  that  the  voyage,  for  the  performance  of 
which  she  was  refitted,  was  not  the  real  voyage  which  the  master  was 
instructed  to  perform.  In  this  case  the  vessel  was  captured  and  car- 
ried into  the  enemy's  country  ;  and  the  original  voyage  to  Lisbon  was 
thereby  put  an  end  to,  by  a  compulsory  sale  of  the  cargo.  The  vessel 
was  released,  but  could  not  leave  Jamaica  upon  any  voyage  without 
considerable  expense  in  refitting  and  victualling  her.  What  was  the 
master  to  do  ?  He  could  have  her  refitted,  by  agreeing  to  hypothecate 
her  as  a  security  for  the  advances  ;  but  he  is  told  that  he  cannot  give 
a  valid  hypothecation  unless  he  will  agree  to  go  to  Lisbon,  at  great 
expense,  and  without  an  object ;  or  will  return  empty  to  the  United 
States  ;  although  a  freight  had  been  offered  him  sufficient,  perhaps,  to 
cover  all  her  expenses  and  outfits.  Is  it  possible  that  it  can  lie  in  the 
mouth  of  the  owner,  who  would  alone  be  the  victim  of  such  a  doctrine, 
and  is  benefited  by  a  rejection  of  it,  to  urge  this  as  an  objection  against 
the  validity  of  the  contract  ?  It  can  only  be  necessary  to  state  the 
case  to  refute  the  argument.  The  truth  is  that  the  authority  of  the 
master  to  hypothecate  is  not  restricted  to  necessaries  to  enable  him  to 
complete  his  original  voyage.  It  extends  to  the  obtaining  of  supplies 
necessary  for  the  safety  of  the  vessel,  and  to  enable  him  to  perform 
any  voyage  which  he  is  authorized  by  law  to  undertake;  there  being 
no  collusion  between  him  and  the  lender  to  injure  the  owner.  That 
the  master,  in  this  case,  was  authorized,  and  that  it  was  his  duty  to 


580  EFFECTS   OF   WAR   AS   BETWEEN  ENEMIES.      [PART  11. 

return  to  the  United  States,  under  any  legal  contract  intended  for  the 
advantage  of  his  owners,  is  indubitable. 

Another  objection  was  taken  by  the  respondent's  counsel,  to  the 
sufficiency  of  the  evidence  to  prove  the  debt  for  which  this  security 
was  given,  which  need  not  be  examined  until  the  final  hearing  of  the 
cause.  It  may  be  sufficient,  for  the  present,  to  observe  that  the  libel- 
lant,  upon  a  bottomi-y  bond,  is  always  expected  to  prove,  by  evidence 
other  than  the  bond  itself,  that  the  money  was  lent,  or  the  repairs 
made  and  materials  furnished,  to  the  amount  for  which  the  vessel  is 
liable  ;  —  that  they  were  necessary  to  enable  her  to  perform  her  voyage, 
or  for  her  safety,  and  could  no  otherwise  be  obtained,  etc.  He  ought 
to  exhibit  an  account  of  those  items,  with  the  usual  proofs  to  support 
them,  that  the  court  may  judge  whether  they  were  necessary  for  those 
purposes  ;  because,  unless  they  were,  the  master  exceeded  his  authority, 
as  such,  to  bind  the  property  of  his  owners. 

The  parties  then  asked  leave  to  amend  the  pleadings,  which  was 
granted.^ 


CRAWFORD   &   McCLEAN  v.  THE   "WILLIAM   PENN." 
United  States  Circuit  Court  for  Pennsylvania  District,  1815. 

{Peters,  Circuit  Court,  106.) 

This  was  a  libel  in  the  district  court,  on  a  hypothecation  of  this 
vessel,  given  at  Jamaica,  for  repairs  made  on  her,  and  advances  for 
her  outfit,  to  enable  her  to  perform  her  voyage  to  the  United  States. 
The  owner  of  the  ship  was  admitted  to  claim  ;  and  he  pleaded  that 

1  In  Scholejield  Sf-  Ta^flor  \.  EicheUierger,  1833,  7  Pet.  58G  —  a  case  involving  trad- 
ing with  the  enemy  —  Mr.  Justice  Johnson,  speaking  for  the  court,  said:  "  Tlie  doc- 
trine at  tliis  day  is  not  to  be  questioned  that,  during  a  state  of  hostiHty,  the  citizens 
of  hostile  states  are  incapable  of  contracting  witli  each  other.  For  nearly  twenty 
years  this  has  been  the  acknowledged  doctrine  of  this  court,  and  in  a  case  which  proves 
it  to  be  of  very  general  and  rigid  application  (The  Rapid).  Even  the  exception 
commonly  quoted  of  ransom  bonds  has  been  shown,  I  think,  in  the  case  of  Potts  v. 
Bell,  to  be  no  exception;  since  it  grows  out  of  a  state  of  war  ;  is  ex  vi  termini  a  con- 
tract between  belligerents  ;  and  from  its  nature  carries  with  it  the  evidence  of  the 
fidelity  of  the  parties  to  their  respective  governments.  To  say  that  the  rule  is  witli- 
out  exception  would  be  assuming  too  great  a  latitude.  The  question  has  never  yet 
been  examined  whether  a  contract  for  necessaries,  or  even  for  money  to  enable  the 
individual  to  get  home,  would  not  be  enforced;  and  analogies  familiar  to  the  law,  as 
well  as  the  influence  of  the  general  rule  in  international  law,  that  the  severities  of  war 
are  to  be  diminished  by  all  safe  and  practical  means,  might  be  appealed  to  in  support 
of  such  an  exception.  But  at  present  it  may  be  safely  affirmed  that  there  is  no 
recognized  exception  but  permission  of  a  state  to  its  own  citizens,  which  is  also  im- 


CHAP.  II.]     CRAWFORD  &  McCLEAN  V.  THE  "  WILLIAM  PENN."     581 

the  instrument  of  h3'pothecation  was  executed  during  war;  and 
that  the  libellants  are  alien  enemies,  residing  in  Jamaica. 

The  replication  stated  that  the  vessel  was  employed,  by  the  United 
States,  as  a  cartel,  to  bring  to  the  United  States,  from  Jamaica,  a  num- 
ber of  American  prisoners;  and  having,  as  such,  commenced  her  voy- 
age, was  compelled  by  stress  of  weather  to  put  back  to  refit,  and 
procure  provisions ;  on  which  account  these  advances  were  made,  and 
without  which  she  would  not  have  performed  her  voyage.  To  this  rep- 
lication, there  was  a  demurrer  and  joinder  by  the  libellants.  The 
District  Court  dismissed  the  libel,  from  which  decision  the  cause  came 
by  appeal  to  this  court. 

Washingtox,  J.  The  general  rule  of  the  common  law  of  England 
is,  that  an  alien  enemy  cannot  maintain  an  action  in  the  courts  of  that 
country,  during  the  war,  in  his  own  name.  The  rule  is  not  founded 
upon  any  legal  objection  to  the  contract  or  other  ground  of  the  action, 
but,  upon  the  disability  of  the  party  to  sue ;  arising  out  of  the  hostile 
character  which  the  war  has  impressed  upon  him.  This  rule  appears 
to  be  inflexible,  except  where  the  alien  enemy  is  under  the  protection 
of  the  king ;  as  where  he  comes  into  the  kingdom  after  the  war,  by  li- 
cense of  the  sovereign  ;  or  being  there  at  the  time  of  the  war,  is  per- 
mitted to  continue  his  domicile. 

Within  the  reason  upon  which  the  general  rule  was  probably  founded, 
it  has  been  also  decided  that,  if  the  person  beneficially  interested  in 
the  subject  in  dispute  be  an  alien  enemy,  the  action  cannot  be  sup-  | 
ported,  even  in  the  name  of  a  British  subject,  his  trustee,  any  more  j 
than  it  could  have  been  in  that  of  the  alien  enemy  himself.  Public 
policy,  which  forbids  that  the  property  sued  for  should  be  carried  out 
of  the  country  to  enrich  the  enemy,  would  be  violated  equally  in  the 
one  case  as  in  the  other. 

But  where  the  reason  ceases,  upon  which  this  doctrine  is  founded, 
which  forbids  the  interest  of  an  alien  enemy  to  be  asserted  by  his 
trustee,  though  a  subject,  the  rule  does  not  prevail ;  and  therefore  if 

plied  in  any  treaty  stipulation  to  that  effect  entered  into  by  the  belligerents.  Nor 
do  the  learned  gentlemen  who  argued  this  cause  controvert  the  general  rule  ;  they  only 
attempt  to  except  this  case  from  its  application  :  First,  b3'  an  imputed  permission  on 
behalf  of  the  United  States  ;  Second,  by  shifting  the  creation  of  the  contract  from  the 
date,  which  appears  on  its  face,  to  the  time  of  delivery  of  the  goods,  which,  in  point 
of  time,  were  not  shipped  until  after  the  peace.  *  *  * 

"  It  will  be  perceived  here  that  the  court  does  not  deny  the  power  of  the  bellig- 
erent states  so  to  modify  the  relations  of  a  state  of  war  as  to  permit  commercial 
intercourse  or  other  intercourse  according  to  their  will.  They  who  give  the  law  may 
modify  it,  and  except  from  its  operation  whatever  ground  they  choose  to  declare 
neutral.  The  language  of  jurists  is  uniform  on  tiiis  subject,  and  reason,  policy  and 
humanity  sustain  the  exercise  of  such  a  power."  —  Ed. 


582  EFFECTS    OF    WAR    AS    BETWEEN   ENEMIES.       [PART  TI. 

the  contract  on  which  the  suit  is  brought,  arise  directly  or  collaterally 
out  of  a  trade  licensed  by  the  sovereign  authority  of  the  go-vernment, 
in  whose  courts  redress  is  sought,  enemy  interest  in  the  subject  in  con- 
troversy will  not  defeat  the  action  depending  in  the  name  of  the  sub- 
ject as  trustee.  Thus,  it  has  been  held  that  action  upon  an  insurance 
made  upon  a  licensed  trade  with  the  enemy  for  the  use  of  an  enemy, 
may  be  supported  in  the  common-law  courts  of  England,  in  the  name 
of  the  agent  who  effected  the  insurance,  he  being  a  British  subject. 
For  all  the  purposes  of  this  trade,  the  person  for  whose  benefit  the 
license  was  granted,  is  to  be  regarded,  virtually,  as  an  adopted  subject 
of  Great  Britain  ;  and  his  trade  under  such  license  as  British  trade  : — 
and,  the  end  being  licensed,  the  ordinary  legitimate  u)eans  of  attaining 
that  end  is  considered  as  being  also  licensed.  13  East,  332  ;  UsjJOr- 
richa  v.  Noble,  8  East,  273;  Kensington  v.  Ingllsj  15  East,  419. 

It  is  clear,  therefore,  that  wherever  the  trade  with  au  enemy,  and 
consequently  a  contract  founded  thereon,  are  rendered  lawful  by  the 
license  of  the  sovereign,  the  objection  to  the  person  of  the  plaintiff, 
on  tlie  ground  of  his  being  an  alien  enemv,  is  merely  technical  and 
sfrlcfi  juris.  Although  the  reason  on  which  the  rule  was  founded  does 
not  exist  in  sucli  a  case,  the  court  being  bound  to  support  the  beneficial 
interest  of  such  licensed  alien  enemy,  yet  it  does  not  appear  that  any 
judge  of  the  common-law  courts  of  England  has  thought  himself  at 
liberty  to  entertain  such  a  suit,  if  brought  in  the  name  of  the  alien 
enemy.  Yet  I  know  of  no  case  in  which  it  has  been  decided,  upon  the 
point  coming  directly  in  judgment,  that  such  an  action  could  not  be 
maintained.  In  the  case  of  Cornu  v.  Blackhunie,  Dougl.  641,  the 
action  was  supported  in  the  name  of  the  alien  enemy  upon  a  ransom 
bond ;  but  no  plea  was  put  in  to  bar  the  right  of  the  plaintiff  to  sue ; 
and  the  cause  was  decided  upon  another  point.  In  Anthon  v.  Fisher, 
Dougl.  (note)  649,  it  was  laid  down  generally,  that  an  alien  enemy  cannot, 
by  the  municipal  laws  of  England,  sue  for  the  recovery  of  a  right  ac- 
quired by  him  in  actual  war;  but  the  particular  case  in  which  that 
decision  was  given  was  that  of  a  ransom  bond ;  and  of  course  the 
decision  of  the  court  should  be  considered  as  applicable  to  such  a  case. 
But  the  case  of  a  ransom  bond  is  very  different  from  that  of  a  eon- 
tract  arising  out  of  a  licensed  trade.  In  the  former,  the  hostile  char- 
acter of  the  obligee  is  in  no  respect  removed;  on  the  contrary  it  is  an 
act  of  hostility  which  gives  rise  to  it.  In  the  latter  case,  the  hostile 
character  of  the  ])arty  with  whom  the  contract  is  made,  does  not  attach 
either  to  him  or  to  the  contract.  '"He  is  to  be  regarded  (in  the  words 
of  Lord  Ellenborough)  virtuall}-  as  an  adopted  subject  of  Great  Brit- 
ain, and  his  trade  as  British  trade."  If  he  is  to  be  so  considered,  it 
would  seem  to  follow,  that  all  objection  to  a  suit  being  maintained  in 


CHAP.  II.]     CRAWFORD  &  McCLEAN  V.  THE  "  WILLIAM  PENN."     583 

the  name  of  such  adopted  subject,  would  be  at  an  end ;  as  much  so 
if  the  plaintiff  were,  at  the  time  of  bringing  the  suit,  personally  within 
the  British  dominions.  It  must,  nevertheless,  be  acknowledged  that, 
in  the  case  of  Kensington  v.  Inylis,  8  East,  273,  the  court  seemed  to  be 
of  opinion  that,  even  in  the  case  of  a  licensed  trade,  the  suit  cannot  be 
maintained  in  the  name  of  the  alien  enemy.  But,  as  the  suit  was  in 
the  name  of  a  subject,  the  opinion,  as  to  this  point,  was  not  essential 
to  the  decision  of  the  cause;  and,  of  course,  it  ought  not  to  rank 
higher  than  an  obiter  dictum. 

This  examination  of  the  subject  has  been  intended  to  show  that,  in 
cases  where  the  contract  upon  which  the  suit  is  brought,  arises  out  of 
a  licensed  trade,  an  objection  founded  upon  the  disability  of  the  nomi-j 
nal  plaintitf  to  maintain  the  action,  on  the  ground  of  alien  enemy,  is  ex-| 
tremely  feeble;  and  can  only  be  supported  by  a  tenacious  adherence  to 
a  rigid  rule  of  the  common  law,  notwithstanding  the  reason  of  the  rule 
should,  in  tliis  particular  case,  have  ceased. 

The  question,  then,  is,  does  this'rule  apply  in  all  its  rigor  to  courts 
Acting  under  the  general  law  of  nations,  and  proceeding  according  to 
the  civil  law  ?  I  think  it  does  not.  Bynkershoek  (p.  55)  appears 
to  be  very  strong  upon  this  subject.  He  says  that  where  commerce  is 
permitted  amongst  enemies, contracts,  and  actions  founded  upon  them, 
are  permitted;  "for  who,"  he  asks,  "will  sell,  and  carry  goods  to  an 
enemy,  without  the  right  of  recovering  the  price  of  them?  and  what 
hope  can  there  be  of  recovering  that  price,  if  one  cannot  judicially  com- 
pel payment  from  his  enemy  purchaser."  In  cases  of  this  nature,  in 
courts  proceeding  according  to  the  civil  law,  the  only  question  is,  has 
the  plaintiff  a. x>ersona  standi  injudicio?  Can  he  be  heard  as  a  plain- 
tiff in  that  court  ?  Bynkershoek,  in  the  above  quotations,  gives  the 
answer.  The  right  to  sue,  and  to  compel  payment,  is  a  necessary  inci- 
dent to  his  right  to  trade  and  to  contract.  This  doctrine  of  Bynker- 
shoek has  received  the  entire  approbation  of  Sir  William  Scott,  in  the 
case  of  the  Hoop,  in  which  he  gives  the  sense  of  that  learned  jurist  as 
amounting  to  tliis,  that  the  legality  of  commerce,  and  the  mutual  use 
of  courts  of  justice,  are  inseparable,  1  Kob.  168. 

The  distinction  which  I  am  endeavoring  to  maintain,  founded  upon 
the  peculiar  rules  which  prevail  in  the  courts  of  common  law,  and 
those  proceeding  by  the  rules  of  the  civil  law,  may  be  illustrated  by 
analogous  cases  of  every  day's  practice.  No  rule  is  more  rigidly  ad- 
hered to  by  the  common-law  courts  of  England,  than  that  the  assignee 
of  a  chose  in  action  cannot  maintain  a  suit  in  those  courts,  in  his  own 
name,  upon  common-law  principles.  Neither  can  a  cestui  que  tnist 
bring  an  action  in  his  own  name  ;  although,  in  both  cases,  the  court 
will,  for  certain  purposes,  take  notice  of  those  equitable  interests.   But 


584  EFFECTS    OF   WAR    AS   BETWEEN   ENEMIES.       [PAKT  11. 

in  a  court  of  equity,  where  the  strict  rules  of  the  coramon-law  courts 
do  not  obtain  admission,  the  person  having  the  beneficial  interest  is 
admitted  to  sue,  and  to  assert  his  right,  in  his  own  name.  In  like 
manner,  and  within  the  same  principle,  it  would  seem  reasonable  that 
where  the  party  is  divested  of  his  hostile  character,  by  which  he  ac- 
quires 2i  persona  standi  injudicio,  the  technical  objection  of  the  com- 
mon-law courts  to  his  being  heard,  as  plaintiff,  ought  to  be  disregarded 
in  courts  which  proceed  by  different  rules. 

The  only  remaining  question  is,  can  a  contract,  made  with  an  alien 
enemy,  by  the  owner  or  master  of  a  cartel  vessel,  in  relation  to  the 
navigation  of  that  vessel,  upon  the  service  in  which  she  is  engaged,  be 
enforced  in  a  court  proceeding  according  to  the  rules  of  the  civil  law, 
and  having  jurisdiction  of  the  subject-matter?  What  is  the  character 
of  a  cartel  vessel,  and  of  the  persons  concerned  in  her  navigation  ? 
The  flag  of  truce  which  she  carries  throws  over  her  and  them  the 
mantle  of  peace.  Slie  is,  pro  Jiac  vice,  a  neutral  licensed  vessel ;  and 
all  persons  concerned  in  her  navigation,  upon  the  particular  service  in 
which  both  belligerents  have  employed  her,  are  neutral,  in  respect  to 
both,  and  under  the  protection  of  both.  She  cannot  carry  on  commerce 
under  the  protection  of  her  flag,  because  this  was  not  the  business  for 
which  she  was  employed  and  for  which  the  immunities  of  tliat  flag 
were  granted  to  her.  She  is  engaged  in  a  special  service,  to  carry- 
prisoners  from  one  place  to  another ;  and,  whilst  so  engaged,  she  is 
under  the  protection  of  both  belligerents,  in  relation  to  every  act 
necessarily  connected  Avith  that  service.  It  follows  that  all  contracts 
made  for  equipping  and  fitting  her  for  this  service  are  to  be  considered 
as  contracts  made  between  friends,  and  consequently  ought  to  be  en- 
forced in  the  tribunals  of  either  belligerents,  having  jurisdiction  of  the 
subject.  The  agreement  of  the  two  nations,  by  their  agents  to  make 
her  a  cartel,  amounts  to  a  license  by  both  to  perform  the  service  in 
which  she  is  employed,  and  sanctifies  all  the  means  necessary  to  that 
end. 

Upon  these  principles,  I  am  of  opinion,  that  the  libellants  were 
capable  of  maintaining  this  suit ;  and  that  the  plea  of  the  claimants 
ought  to  be  overruled. 

The  proceedings  have  not  been  regular ;  but  I  shall  not  go  further, 
after  reversing  the  sentence  below,  than  to  direct  the  appellants  to 
answer  the  libel.'^ 

1  The  cartel  need  not  be  coneliulcd  during,  but  may  be  made  in  peace  in  anticipa- 
tion of  war,  The  Carolina,  1807,  6  C.  Rob.,  3.>G;  as  it  effects  the  exchiinge  of  prisoners, 
it  is  confined  to  the  belligerents,    The  Rose   m  Bloom,  1811,  1  I)od.  57,  (50. 

Vessels  actually  employed  under  the  agreement  are  protected  both  going  and 
coming  in  the  line  of  duty,  but  vessels  about  to  enter  or  sailing  with  the  intention 


CHAP.  II.]  THE  "HAKMONY."  685 


Section  32.  —  Commercial  Domicile. 


THE    "HARMONY." 
High  Court  of  Admiralty,  1800. 

(2  C.  Robinson,  322.) 

This  was  one  of  several  American  vessels  in  which  a  claim  had 
been  reserved  for  part  of  the  cargo,  on  further  proof  to  be  made  of  the 
national  character  of  G.  W.  Murray,  who  appeared  in  the  original 
case,  as  a  i)artner  of  a  house  of  trade  in  America,  but  personally 
resident  in  France;  restitution  had  been  decreed  in  the  several  claims 
to  the  house  of  trade  in  America,  with  a  reservation  of  the  share  of 
this  partner. 

G.  W.  Murru}^  a  partner  in  a  house  of  trade  in  New  York,  had 
gone  to  France,  in  1794,  as  supercargo  of  a  vessel,  in  behalf  of  his 
firm,  to  there  dispose  of  the  cargo ;  but  with  the  exception  of  a  brief 
visit  to  America  in  1795-96,  he  continued  to  reside  in  France,  and 
to  receive  and  dispose  of  cargoes  sent  out  from  New  York. 

At  the  time  of  the  first  trial,  Mr.  G.  W.  Murray  had  not  been  in 
France  a  year ;  but  from  the  evidence  of  letters,  etc..  Sir  ^Y.  Scott 
thought  the  intention  was  to  form  a  permanent  residence  and  cor- 
respondence in  France.     This  belief  was  strengthened  by  the  fact 

of  entering  into  the  service  on  reaciiinu;  a  particular  port  are  not  thus  privileged  and 
protected,  T/ie  Daifjie,  1800,  3  C.  Rob.  139,  141 ;  a  formal  contract  is  the  rule,  but  an 
informal  agreement  followed  by  use  as  cartel  ship  will  be  enforced.  La  Gloire,  1804, 
5  C.  Rob.  102  ;  a  cartel  ship  is  primarily  for  tiie  ransom  of  prisoners,  but  not  ex- 
chisively  so ;  it  may  tlierefore  be  used  to  carry  into  effect  previous  treaty  stipulations 
of  tlie  contracting  parties,  The  Carolina,  supra  ;  tlie  court  construes  tlie  cartel  liber- 
ally and  is  satisfied  witli  a  bona  fide  and  substantial  performance  of  the  require- 
ments, but  trade  of  all  kinds  carried  on  in  tlie  vessel  subjects  the  cargo.  La  Rosina, 
1800,  2  C.  Rob.  372,  and  at  times  the  vessel  to  confiscation.  The  l^emis,  1803, 
4  C.  Rob.  355;  mercliandise  carried  by  express  permission  will  not,  tliough  goods 
carried  in  excess  of  the  permission  will  be  confiscated,  The  Carolina,  supra;  pris- 
oners carried  home  are  bound  to  refrain  from  hostilities  of  all  kinds  on  board,  hence 
capture  or  recapture  from  the  enemy  of  a  vessel  of  their  own  country  is  illegal  and 
vests  no  title  in  the  captor,  The  Marij,  1804,  5  C.  Rob.  200;  a  cartel  is  not  a  treaty 
in  the  sense  of  tlie  Constitution,  and  the  cartel  for  the  excliange  of  prisoners,  between 
the  United  States  and  Great  Britain,  in  1813,  was  ratified  by  the  Secretary  of  State,  not 
the  Senate  (May  14),  2  Halleck,  .32tj ;  but  when  concluded  it  is  of  such  force  that  tlie 
sovereign  power  may  not  annul  it.  Henderson's  Case,  1863,  2  Pittsburg  R.  440.  See 
case  last  cited  for  the  question  of  parole,  and  for  the  matter  of  capitulation,  see  Rucker's 
Case,  186G,  1  Am.  Law.  Rev.  217.  —  Ed. 


586  EFFECTS    OF   WAR    AS    BETWEEN   ENE]\nES.        [PART  U. 

that  Mr.  Murray  had  returned  to  France  in  1796  and  remained  there 
till  1800.  Hence  his  return  to  America  in  1795-96  was  probably  but 
temporary,  and  he  was  considered  to  have  had  a  residence  in  France 
for  six  years. 

Judgment, — Sir  W.  Scott: — i 

"  This  is  a  question  which  arises  on  several  parcels  of  property 
claimed  on  behalf  of  G.  "W.  Murray ;  and  it  is  in  all  of  them  a  ques- 
tion of  residence  or  domicil,  which  I  have  often  had  occasion  to  ob- 
serve, is  in  itself  a  question  of  considerable  difficulty,  depending  on 
a  great  variety  of  circumstances,  hardly  capable  of  being  defined  by 
any  general  precise  rules.  The  active  spirit  of  commerce  now  abroad 
■in  the  world,  still  farther  increases  this  difficulty  by  increasing  the 
variety  of  local  situations,  in  which  the  same  individual  is  to  be 
found  at  no  great  distance  of  time ;  and  by  that  sort  of  extended  cir- 
culation, if  I  may  so  call  it,  by  which  the  same  transaction  commu- 
nicates with  different  countries,  as  in  the  present  cases,  in  which  the 
same  trading  adventures  have  their  origin  (perhaps)  in  America, 
travel  to  France,  from  France  to  England,  from  England  back  to 
America  again,  without  enabling  us  to  assign  accurately  the  exact 
legal  effect  of  the  local  character  of  every  particular  portion  of  this 
divided  transaction. 

"  In  deciding  such  cases,  the  necessarj^  freedom  of  commerce  im- 
poses likewise  the  duty  of  a  particular  attention  and  delicacy;  and 
strict  principle  of  law  must  not  be  pressed  too  eagerly  against  it ; 
and  I  have  before  had  occasion  to  remark,  that  the  particular  situa- 
tion of  America,  in  respect  to  distance,  seems  still  more  particularly 
to  entitle  the  merchants  of  that  country  to  some  favourable  distinc- 
tions. They  live  at  a  great  distance  from  Europe ;  they  have  not 
the  same  open  and  ready  and  constant  correspondence  with  individ- 
uals of  the  several  nations  of  Europe,  that  these  persons  have  with 
each  other ;  they  are  on  that  very  account  more  likely  to  have  their 
mercantile  confidence  in  Europe  abused,  and  therefore  to  have  more 
frequent  calls  for  a  personal  attendance  to  their  own  concerns  ;  and 
it  is  to  be  expected  that  when  the  necessity  of  their  affairs  calls  them 
across  the  Atlantic,  they  should  make  rather  a  longer  stay  in  the 
country  where  they  are  called,  than  foreign  merchants  who  step 
from  a  neighbouring  country  in  Europe,  to  which  every  day  offers  a 
convenient  opportunity  of  return. 

"  In  considering  this  particular  case,  it  may  not  be  improper  to 
remark,  that  circumstances  occur  in  the  evidence  that  address  them- 
selves forcibly  to  private  commiseration,  remarking,  however,  at  the 

^  Statement  of  case  is  varied  and  only  part  of  the  decision  of  tlie  learned  judge  is 
given.  —  Ed. 


CHAP.  II.]  THE    "  HARMONY."  587 

same  time,  that  public  duty  can  allow  only  a  very  limited  effect  to 
such  considerations,  and  still  less  to  another,  that  has  been  pressed 
upon  me,  that  the  money,  if  restored,  is  to  go  in  payment  of  debts 
due  to  British  creditors,  from  the  bankrupt  estate  of  this  unfortunate 
person. 

"  3Iy  business  is  to  inquire  Avhether  he  is  entitled  to  recover  it, 
without  regard  to  the  probable  application  of  it,  if  it  finds  its  way 
again  into  his  possession. 

"  Of  the  few  principles  that  can  be  laid  down  generally,  I  may 
venture  to  hold,  that  time  is  the  grand  ingredient  in  constituting 
domicil.  I  think  that  hardly  enough  is  attributed  to  its  effects  ;  in 
most  cases  it  is  unavoidably  conclusive ;  it  is  not  unfrequently  said^ 
that  if  a  person  comes  only  for  a  special  purpose,  that  shall  not  fix  a 
domicil.  This  is  not  to  be  taken  in  an  unqualified  latitude,  and  with- 
out some  respect  had  to  the  time  wliich  such  a  purpose  may  or  shall 
occupy  ;  for  if  the  purpose  be  of  a  nature  that  may^  prohaJAy^  or  does 
actually  detain  the  person  for  a  great  length  of  time,  I  cannot  but 
think  that  a  general  residence  might  grow  upon  the  special  purpose. 

"  A  special  purpose  may  lead  a  man  to  a  country,  where  it  shall 
detain  him  the  whole  of  his  life.  A  man  comes  here  to  follow  a  law- 
suit, it  may  happen,  and  indeed  is  often  used  as  a  ground  of  vulgar 
and  unfounded  reproach  (unfounded  as  matter  of  just  reproach 
though  the  fact  may  be  true,)  on  the  laws  of  this  country,  that  it 
may  last  as  long  as  himself.  Some  suits  are  famous  in  our  juridical 
history  for  having  even  outlived  generations  of  suitors,  I  cannot 
but  think  that  against  such  a  long  residence,  the  plea  of  an  original 
special  purpose  could  not  be  averred;  it  must  be  inferred  in  such  a 
case,  that  other  purposes  forced  themselves  upon  him  and  mixed 
themselves  with  his  original  design,  and  impressed  upon  him  the 
character  of  the  country  where  he  resided. 

"  Suppose  a  man  comes  mto  a  belligerent  country  at  or  before 
the  beginning  of  a  war ;  it  is  certainly  reasonable  not  to  bind  him 
too  soon  to  an  acquired  character,  and  to  allow  him  a  fair  time  to 
disengage  himself  ;  but  if  he  continues  to  reside  during  a  good  part 
of  the  war,  contributing,  by  payment  of  taxes,  and  other  means,  to 
the  strength  of  that  country,  I  am  of  opinion,  that  he  could  not  plead 
his  special  purpose  with  any  effect  against  the  rights  of  hostility. 
If  he  could,  there  would  be  no  sufficient  guard  against  the  fraud  and 
abuses  of  masked,  i)retended,  original,  and  sole  purposes  of  a  long- 
continued  residence.  There  is  a  time  which  will  estop  such  a  plea ; 
no  rule  can  fix  the  time  a  p/'iori,  but  such  a  time  there  must  be. 

"  In  proof  of  the  efl&cacy  of  mere  time,  it  is  not  impertinent  to 
remark,  that  the  same  quantity  of  business,  which  would  not  fix  a 


588  EFFECTS    OF    WAR    AS    BETWEEN   ENEMIES.       [PART  U. 

doniicil  in  a  certain  space  of  time,  would  nevertli'eless  have  that 
eltect,  if  distributed  over  a  large  space  of  time.  Suppose  an  Ameri- 
can comes  to  Europe,  with  six  contemporary  cargoes,  of  which  he 
had  the  present  care  and  management,  meaning  to  return  to  America 
immediately ;  they  would  form  a  different  case  from  that,  of  the  same 
American,  coming  to  any  particular  country  of  Europe,  with  one 
cargo,  and  fixing  himself  there,  to  receive  five  remaining  cargoes, 
one  m  each  year  successively.  I  repeat,  that  time  is  the  great  agent 
in  this  matter ;  it  is  to  be  taken  in  a  compound  ratio,  of  the  time  and 
the  occupation,  with  a  great  preponderance  on  the  article  of  time: 
he  the  occupation  what  it  may,  it  cannot  happen,  but  with  few  ex- 
ceptions, that  mere  length  of  time  shall  not  constitute  a  domicil. 


THE    '-IXDIAX   CHIEF." 
High  Court  of  Admiraltt,  1801. 
(3  C.  Robinson,  12.) 

.Judgment.  —  Sir  W.  Scott  :  ^  — 

•'This  is  the  case  of  a  ship  seized  in  the  port  of  Cowes,  where 
she  came  to  receive  orders  respecting  the  delivery  of  a  cargo  taken 
in  at  Batavia,  with  a  professed  original  intention  of  proceeding 
to  Hamburg;  but  on  •  coming  into  this  country  for  particular 
orders,  the  ship  and  cargo  were  seized  in  port.  It  does  not  ap- 
pear clear  to  the  court,  that  it  might  not  be  a  cargo  intended  to 
be  delivered  in  this  country,  as  many  such  cargoes  have  been,  un- 
der the  Dutch  property  act :  I  mention  this  to  meet  an  observation 
that  has  been  thrown  out,  '  that  it  is  doubtful  w^hether  the  ship 
might  not  be  confiscable  on  the  ground  of  being  a  neutral  ship  com- 
ing from  a  colony  of  the  enemy,  not  to  her  own  ports  or  the  ports  of 
this  country.'  I  cannot  assume  it  as  a  demonstrated  fact  in  the  case, 
that  the  cargo  was  to  be  delivered  at  Hamburg. — The  vessel  sailed 
in  1795,  and  as  an  American  ship  with  an  American  pass,  and  all 
American  documents ;  but  nevertheless  if  the  owner  really  resided 
here,  such  papers  could  not  protect  his  vessel ;  if  the  owmer  was 
resident  in  England,  and  the  voyage  such  as  an  English  merchant 
could  not  engage  in,  an  American  residing  here,  and  carrying  on 
trade,  could  not  protect  his  ship  merely  by  putting  American  docu- 
ments on  board ;  his  interest  must  stand  or  fall  according  to  the 

1  Statement  of  the  case  is  omitted.  —  Ed. 


CHAP.  II.]  THE    "  INDIAN    CHIEF."  589 

determination  which  the  court  shall  make  on  the  national  character 
of  such  a  person. 

"  There  are  two  propositions  which  are  not  to  be  controverted; 
that  Mr.  Johnson  is  an  American  generally  by  birth,  which  is  the 
circumstance  that  first  impresses  itself  on  the  mind  of  the  Court ; 
and  also  by  the  part  which  he  took  on  the  breaking  out  of  the 
American  war.  He  came  hither  when  both  countries  were  open  to 
him ;  but  on  the  breaking  out  of  hostilities,  he  made  his  election 
which  country  he  would  adhere  to,  and  in  consequence  thereof  Avent 
to  France.  As  to  the  doubt  that  has  been  suggested,  whether  he 
would  be  deemed  an  American,  not  having  been  personally  there  at 
the  time  of  the  declaration  of  the  independence  of  that  country ;  I 
think  that  is  suflBciently  cleared  up,  by  the  circumstances  of  his  being 
adopted  as  such  by  the  act  of  the  American  government,  declaring 
him  and  his  family  to  be  American  subjects,  and  by  the  official 
character  which  that  government  has  intrusted  to  him;  I  am  of 
opinion,  therefore,  that  he  has  not  lost  the  benefit  of  his  native 
American  character.  He  came  however  to  this  country  in  1783, 
and  engaged  in  trade,  and  has  resided  in  this  country  till  1797; 
during  that  time  he  was  undoubtedly  to  be  considered  as  an  English 
trader;  for  no  position  is  more  established  than  this,  that  if  a  person 
goes  into  another  country,  and  engages  in  trade,  and  resides  there, 
he  is,  by  the  law  of  nations,  to  be  considered  as  a  merchant  of  that 
country  ;  I  should  therefore  have  no  doubt  in  pronouncing  that  Mr. 
Johnson  was  to  be  considered  as  a  merchant  of  this  country,  at  the 
time  of  sailing  of  this  vessel  on  her  outward  voyage.  That  leads  me 
to  take  a  view  of  the  circumstances  of  this  case  ;  the  ship  went  out 
in  1795  with  Mr.  Hewlet  on  board,  and  Mr.  Johnson  says,  '  he  sent 
out  Mr.  Hewlet  as  supercargo,  and  put  the  vessel  under  his  control 
to  take  freight  for  America,  but  that  his  designs  were  frustrated  by 
various  circumstances ; '  and  the  ship  actually  went  to  Madeira, 
JMadras,  Tranquahar,  and  Batavia,  and  from  thence  to  Cowes  where 
she  was  arrested. 

"  Xow  there  can  be  no  doubt  that  if  Mr.  Johnson  had  continued 
where  he  was  at  the  time  of  sailing,  if  he  had  remained  resident  in 
England,  it  must  be  considered  as  a  British  transaction  ;  and  there- 
fore a  criminal  transaction,  on  the  common  principle  that  it  is 
illegal  in  any  person  owing  an  allegiance,  though  temporary,  to 
trade  with  the  public  enemy.  But  it  is  pleaded  that  he  had 
quitted  this  country  before  the  capture,  and  that  he  had  done 
this  in  consequence  of  an  intention  he  had  formed  of  removing 
much  earlier,  but  that  he  had  been  prevented  by  obstacles  that 
obstructed  his  wish;  to  this  effect  the  letter  of  March  1797,  is  ex- 


590  EFFECTS    OF   WAR   AS   BETWEEN  ENEMIES.       [VAUT  IT. 

hibited,  which  must  have  been  preceded  by  private  correspondence 
and  application  to  some  of  liis  creditors.  It  does,  I  think,  breathe 
strong  expressions  of  intention,  and  of  an  ardent  desire  to  get  over 
the  restraint  tliat  alone  detained  him  ;  and  it  affords  conclusive  reason 
to  believe  that  if  he  had  been  a  free  man,  and  at  liberty  to  go  where 
he  pleased,  he  would  have  removed  long  before ;  and  that  he  was 
detained  here  as  a  hostage,  as  he  describes  himself,  to  his  creditors, 
on  motives  of  lionor  creditable  to  his  character.  On  the  9th  of 
September  1797  he  did  actually  retire ;  of  the  sincerity  of  his  quit- 
ting this  country  there  can  hardly  be  a  doubt  entertained;  it  is 
almost  impossible  to  represent  stronger  or  more  natural  grounds  for 
such  a  measure;  and  I  do  not  think  the  Court  runs  any  risk  of 
encountering  a  fraudulent  pretension,  put  forward  to  meet  the  cir- 
cumstances of  the  moment,  without  anything  of  an  original  and  bona 
fide  intention  at  the  bottom  of  it. 

The  ship  was  sent  out  under  the  management  of  the  supercargo, 
and  it  is  said  that  Mr.  Hewlet  exceeded  his  commission.  The  affidavit 
does  not  go  so  far ;  it  does  not  appear  from  that,  that  the  agent  had 
not  the  power  to  enter  into  such  an  engagement ;  but  this,  I  think, 
appears  clearly,  that  it  was  the  understanding  both  of  Mr.  Johnson, 
and  of  his  agent,  Mr.  Hewlet,  who  had  been  his  clerk,  and  to  whom 
he  refers  for  a  confirmation  of  his  avowed  design  of  removing,  that 
before  the  completion  of  such  a  voyage  Mr.  Johnson  would  be  in 
America  ;  therefore  if  the  illegality  of  the  voyage  must  be  supposed 
to  have  presented  itself  to  their  minds,  as  a  British  transaction,  owing 
to  Mr.  Johnson's  residence  in  England,  there  was  reason  enough  for 
them  to  conclude  that  Mr.  Johnson  would  be  removed;  and,  on  that 
view  of  the  matter,  although  it  is  certain  that  an  agent  would  bind 
his  employer  in  such  a  case,  there  is  ground  sufficient  to  presume  that 
the  agent  acted  fairly  and  bona  fide,  and  under  the  expectation  that 
Mr.  Johnson  would  be  returned  to  America. 

"The  ship  arrives  a  few  weeks  after  his  departure;  and  taking  it 
to  be  clear,  that  the  national  character  of  Mr.  Johnson  as  a  liritish 
merchant  was  founded  in  residence  only,  that  it  was  actpiired  by 
residence,  and  rested  on  that  circumstance  alone ;  it  must  be  held 
that  from  the  moment  he  turns  his  back  on  the  country  where  he 
has  resided,  on  his  way  to  his  own  country,  he  was  in  the  act  of  re- 
suming his  original  character,  and  is  to  be  considered  as  an  Amer- 
ican:  The  character  that  is  gained  by  residence  ceases  by  residence: 
It  is  an  adventitious  character  wiiich  no  longer  adheres  to  him,  from 
the  moment  that  he  pats  himself  in, motion,  bona  fide,  to  quit  the 
countiy,  sine  animo  revertendl.  Tlie  courts  that  have  to  apply  this 
principle,  have  applied  it  both  ways,  unfavorably  in  some  cases,  and 


CHAP.  II.]  THE   "  VENUS."  591 

favoraljly  in  others.  This  man  had  actually  quitted  the  country. 
Stronger  was  the  case  of  Mr.  Curtissos  (The  Snelle  Zetjlder,  Lds.  Ap. 
25,  1783);  he  was  a  British  born-subject,  that  had  been  resident  in 
Surinam  and  St.  Eustatius,  and  had  left  those  settlements  with  an 
intention  of  returning  to  this  country ;  but  he  had  got  no  farther 
than  Holland,  the  mother  country  of  those  settlements,  when  the  war 
broke  out.  It  was  determined  by  the  Lords  of  Appeal,  that  he  was 
in  itiiiere,  that  he  had  put  liimself  in  motion,  and  was  in  pursuit  of 
his  native  British  character  :  and  as  such,  he  was  held  to  be  entitled 
to  the  restitution  of  his  property.  So  here,  this  gentleman  Avas  in 
actual  pursuit  of  his  American  character ;  and,  I  think,  there  can  be 
no  doubt  that  his  native  character  was  strongly  and  substantially 
revived,  not  occasionally,  nor  colorably,  for  the  mere  purpose  of  the 
present  claim ;  and  therefore  I  shall  restore  the  ship."  ^ 


THE   "VEN^US." 
Supreme  Court  of  the  United  States,  1814 

(8  Cranch,  253.) 

Washixgtox,  J.,  delivered  the  opinion  of  the  majority  of  tlie 
court.'-^ 

"  *  *  *  The  great  question  involved  in  this,  and  many  other  of 
the  prize  cases  which  have  been  argued,  is,  whether  the  property  of 
these  claimants  who  were  settled  in  Great  Britain,  and  engaged  in 
the  commerce  of  that  country,  shipped  before  they  had  a  knowledge  of 
the  war,  but  which  was  captured,  after  the  declaration  of  war,  by 
an  American  cruiser,  ought  to  be  condemned  as  lawful  prize.  It  is 
contended  by  the  captors,  that  as  these  claimants  had  gained  a 
domicil  in  Great  Britain,  and  continued  to  enjoy  it  up  to  the  time 
war  was  declared,  and  when  these  captures  were  made,  they  nmsfe 
be  considered  as  British  subjects,  in  reference  to  this  property,  and, 
consequently,  that  it  may  legally  be  seized  as  prize  of  war,  in  like 
manner  as  if  it  had  belonged  to  real  British  subjects.  But,  if  not  so, 
it  is  then  insisted  that  these  claimants,  having,  after  their  naturaliza- 
tion in  the  United  States,  returned  to  Great  Britain,  the  country  of 

1  The  cargo  of  this  vessel  belonged  to  Mr.  Millar,  resident  in  Calcutta  as  American 
consul.  He  was  lield  to  be  a  British  merchant  engaged  in  trade  with  tlie  enemv,  and 
his  goods  were  therefore  condemned  as  droits  of  admiralty,  being  seized  in  a  Britisli 
port.     His  consular  character  made  no  difference  whatever  in  protecting  his  trade. Ed, 

'^  Statement  of  the  case  and  part  of  tiie  opinion  of  Wasliington,  J.,  omitted.  —  Eu, 


592  EFFECTS    OF    WAR    AS   BETWEEN    ENEMIES.       [PART  II. 

their  birth,  and  there  resettled  themselves,  they  became  redintegrated 
British  subjects,  and  ought  to  be  considered  by  this  court  in  the  same 
light  as  if  they  never  had  emigrated.  On  the  other  side  it  is  argued, 
that  American  citizens  settled  in  the  country  of  the  enemy,  as  these 
persons  were,  at  the  time  war  was  declared,  were  entitled  to  a  reason- 
able time  to  elect,  after  they  knew  of  the  war,  to  remain  there,  or  to  re- 
turn to  the  United  States ;  and  that  until  such  election  was,  honajide^ 
made,  the  courts  of  this  country  are  bound  to  consider  them  as 
American  citizens,  and  their  property  shipped  before  they  had  an 
opportunity  to  make  this  election,  as  being  protected  against  Ameri- 
can capture. 

"  There  being  no  dispute  as  to  the  facts  upon  which  the  domicil 
of  these  claimants  is  asserted,  the  questions  of  law  alone  remain  to 
be  considered.  They  are  two. — First,  by  what  means  and  to  what 
extent,  a  national  character  may  be  impressed  upon  a  person  different 
from  that  which  permanent  allegiance  gives  him  ?  and,  secondly, 
what  are  the  legal  consequences  to  which  this  acquired  character 
may  expose  him,  in  the  event  of  a  war  taking  place  between  the 
country  of  his  residence  and  that  of  his  birth,  or  in  which  he  had 
been  naturalized  ? 

"1.  The  writers  upon  the  law  of  nations  distinguish  between  a 
temporary  residence  in  a  foreign  country,  for  a  special  purpose,  and 
a  residence  accompanied  with  an  intention  to  make  it  a  permanent 
place  of  abode.  The  latter  is  styled  by  Vattel,  domicile  Avhich  he 
defines  to  be,  '  a  habitation  fixed  in  any  place  with  an  intention  of 
always  staying  there.'  *  *  * 

"  The  question  whether  the  person  to  be  affected  by  the  right  of 
domicil  had  sufficiently  made  known  his  intention  of  fixing  himself 
permanently  in  the  foreign  country,  must  depend  upon  all  the  cir- 
cumstances of  the  case.  If  he  had  made  no  express  declaration  on 
the  subject,  and  his  secret  intention  is  to  be  discovered,  his  acts 
must  be  attended  to,  as  affording  the  most  satisfactory  evidence  of 
his  intention.  On  this  ground  it  is,  that  the  courts  of  England  have 
decided,  that  a  person  who  removes  to  a  foreign  country,  settles 
himself  there,  and  engages  in  the  trade  of  the  country,  furnishes  by 
these  acts  such  evidence  of  an  intention  permanently  to  reside  there, 
as  to  stamp  him  with  the  national  character  of  the  state  where  he 
resides.  In  questions  on  this  subject,  the  chief  point  to  be  considered, 
is  the  animus  manendi ;  and  courts  are  to  devise  such  reasonable 
rules  of  evidence  as  may  establish  the  fact  of  intention.  If  it  suf- 
ficiently appear  that  the  intention  of  removing  was  to  make  a  per- 
manent settlement,  or  for  an  indefinite  time,  the  right  of  domicil  is 
acquired  by  a  residence  even  of  a  few  days.     This  is  one  of  the  rules 


CHAP.  11.]  THE    "  VENUS."  593 

of  the  British  courts,  and  it  appears  to  be  perfectly  reasonable. 
Another  is,  that  a  neutral  or  subject,  found  residing  in  a  foreign 
country  is  presumed  to  be  there  animo  manendi  ;  and  if  a  state  of 
war  should  bring  his  national  character  hito  question,  it  lies  upon  him 
to  explain  the  circumstance  of  his  residence — (the  Bernon,  1  C.  Rob., 
86,  102).  *  *  * 

"  2.  The  next  question  is,  what  are  the  consequences  to  which 
this  acquired  domicil  may  legally  expose  the  person  entitled  to  it,  in 
the  event  of  a  Avar  taking  place  between  the  government  under 
which  he  resides  and  that  to  which  he  owes  a  permanent  allegiance  ? 
A  neutral  in  his  situation,  if  he  should  engage  in  open  hostilities 
with  the  other  belligerent  would  be  considered  and  treated  as  an 
enemy.  A  citizen  of  the  other  belligerent  could  not  be  so  considered, 
because  he  could  not  by  any  act  of  hostility,  render  himself,  strictly 
speaking,  an  enemy,  contrary  to  •  his  permanent  allegiance.  But 
although  he  cannot  be  considered  an  enemy,  in  the  strict  sense  of 
the  word,  yet  he  is  deemed  such,  with  reference  to  the  seizure  of 
so  much  of  his  property  concerned  in  the  trade  of  the  enemy,  as  is 
connected  with  his  residence.  It  is  found  adhering  to  the  enemy. 
He  is  himself  adhering  to  the  enemy,  although  not  criminally  so, 
unless  he  engages  in  acts  of  hostility  against  his  native  country,  or, 
probably,  refuses,  when  required  by  his  country,  to  return.  The 
same  rule,  as  to  property  engaged  in  the  conunerce  of  the  enemy, 
applies  to  neutrals ;  and  for  the  same  reason.  The  converse  of 
this  rule  inevitably  applies  to  the  subject  of  a  belligerent  state 
domiciled  in  a  neutral  country ;  he  is  deemed  a  neutral  by  both 
belligerents,  with  reference  to  the  trade  Avhicli  he  carries  on  with 
the  adverse  belligerent,  and  with  all  the  rest  of  the  world. 

"  But  this  national  character  which  a  man  acquires  by  residence 
may  be  thrown  off  at  pleasure,  by  a  return  to  his  native  country,  or 
even  by  turning  his  back  on  the  country  in  which  he  has  resided, 
on  his  way  to  another.  To  use  the  language  of  Sir  W.  Scott,  it  is 
an  adventitious  character  gained  by  residence,  and  which  ceases  by 
non-residence.  It  no  longer  adheres  to  the  party  from  the  moment 
he  puts  himself  in  motion,  bona  fide,  to  quit  the  country  sine  animo 
revertendi  (3  C.  Rob.,  17,12,  The  Indian  Chief).  The  reasonable- 
ness of  this  rule  can  hardly  be  disputed.  Having  once  acquired  a 
national  character  by  residence  in  a  foreign  country,  he  ought  to  be 
bound  by  all  the  consequences  of  it,  until  he  has  thrown  it  off, 
either  by  an  actual  return  to  his  native  country,  or  to  that  where 
he  was  naturalized,  or  by  commencing  his  removal  bona  fide,  and 
without  an  intention  of  returning.  If  anything  short  of  actual 
removal  be  admitted  to  work  a  change  in  the  national  character 

38 


694  EFFECTS   OF   AVAR   AS   BETWEEN   ENEMIES.        [PART  11. 

acquired  by  residence,  it  seems  perfectly  reasonable  that  the  evidence 
of  a  bona  fide  intention  to  remove  should  be  such  as  to  leave  no 
doubt  of  its  sincerity.  Mere  declaration  of  such  an  intention  ought 
never  to  be  relied  upon,  where  contradicted,  or  at  least  rendered 
doubtful,  by  a  continuance  of  that  residence  which  impressed  the 
character.  They  may  have  been  made  to  deceive ;  or,  if  sincerely 
made,  they  may  never  be  executed.  Even  the  party  himself  ought 
not  to  be  bound  by  them,  because  he  may  afterwards  find  reason  to 
change  his  determination,  and  ought  to  be  permitted  to  do  so.  But 
when  he  accompanies  those  declarations  with  acts  which  speak  a 
language  not  to  be  mistaken,  and  can  hardly  fail  to  be  consummated 
by  actual  removal,  the  strongest  evidence  is  afforded  which  the 
nature  of  such  a  case  can  furnish.  And  is  it  not  proper  that  the 
courts  of  a  belligerent  nation  should  deny  to  any  person  the  right 
to  use  a  character  so  equivocal,  as  to  put  it  in  his  power  to  claim 
whichever  may  best  suit  his  purpose,  when  it  is  called  in  question  ? 
If  his  property  be  taken  trading  with  the  enemy,  shall  he  be  allowed 
to  shield  it  from  confiscation,  by  alleging  that  he  had  intended  to 
remove  from  the  country  of  the  enemy  to  his  own,  then  neutral, 
and,  therefore,  that,  as  a  neutral,  the  trade  was  lawful  ?  If  war  ex- 
ists between  the  country  of  his  residence  and  his  native  country,  and 
his  property  be  seized  by  tlie  former,  or  by  the  latter,  shall  he  be 
heard  to  say  in  the  former  case,  that  he  was  a  domiciled  subject  of 
the  country  of  the  captor,  and  in  the  latter,  that  he  was  a  native 
subject  of  the  country  of  that  captor  also,  because  he  had  declared 
an  intention  to  resume  his  native  character ;  and  thus  to  parry  the 
belligerent  rights  of  both  ?  It  is  to  guard  against  such  inconsist- 
encies, and  against  the  frauds  which  such  pretensions,  if  tolerated, 
would  sanction,  that  the  rule  above  mentioned  has  been  adopted. 
Upon  what  sound  principle  can  a  distinction  be  framed  between 
the  case  of  a  neutral,  and  the  subject  of  one  belligerent  domiciled  in 
the  country  of  the  other  at  the  breaking  out  of  the  war  ?  The  prop- 
erty of  each,  found  engaged  in  the  commerce  of  their  adopted 
country,  belonging  to  them,  before  the  war,  in  their  character  of 
subjects  of  that  country,  so  long  as  they  continued  to  retain  their 
domicil ;  and  a  state  of  war  takes  place  between  that  country  and 
any  other,  by  which  the  two  nations  and  all  their  subjects  become 
enemies  to  each  other,  it  follows  that  all  the  property,  which  was 
once  the  property  of  a  friend,  belongs  now,  in  reference  to  that 
property,  to  an  enemy.  This  doctrine  of  the  common-law  and  prize 
courts  of  England  is  foundcHl,  like  that  mentioned  under  the  first 
head,  upon  national  law  ;  and  it  is  believed  to  be  strongly  supported 
by  reason  and  justice.     It  is  laid  down  by  Grotius,  p.  5G3,  '  that  all 


CHAP.  IT.]  THE   "  VENUS."  595 

the  subjects  of  the  enemy  who  are  such  from  a  permanent  cause, 
that  is  to  say,  settled  in  the  country,  are  liable  to  the  law  of  reprisals, 
whether  they  be  natives  or  foreigners ;  but  not  so  if  they  are  only 
trading  or  sojourning  for  a  little  time.'  And  why,  it  may  be  con- 
fidently asked,  should  not  the  property  of  such  subjects  be  exposed 
to  the  law  of  reprisals  and  of  war,  so  long  as  the  owner  retains  his 
acquired  domicil,  or,  in  the  words  of  Grotius,  continues  a  permanent 
residence  in  the  country  of  the  enemy  ?  They  were  before,  and 
continue  after  the  war,  bound,  by  such  residence,  to  the  society  of 
which  they  are  members,  subject  to  the  laws  of  the  state,  and  oAviug 
a  qualified  allegiance  thereto ;  they  are  obliged  to  defend  it  (with 
an  exception  in  favor  of  such  a  subject,  in  relation  to  his  native 
country),  in  return  for  the  protection  it  affords  them,  and  the  privi- 
leges which  the  laws  bestow  upon  them  as  subjects.  The  property 
of  such  persons,  equally  with  that  of  the  native  subjects  in  their 
totality,  is  to  be  considered  as  the  goods  of  the  nation,  in  regard  to 
other  states.  It  belongs,  in  some  sort,  to  the  state,  from  the  right 
which  she  has  over  the  goods  of  its  citizens,  which  make  a  part  of 
the  sum  total  of  its  riches,  and  augment  its  power.  Vatt.,  147,  and 
also  B.,  1,  c.  14.,  §  182.  In  reprisals,  continues  the  same  author,  we 
seize  on  the  property  of  the  subject,  just  as  we  would  that  of  the 
sovereign;  everything  that  belongs  to  the  nation  is  subject  to 
reprisals,  wherever  it  can  be  seized,  with  the  exception  of  a  deposit 
entrusted  to  the  public  faith.  B.,  2,  c.  18,  §  344.  Now  if  a  perma- 
nent residence  constitutes  the  person  a  subject  of  the  country  where 
he  is  settled,  so  long  as  he  continues  to  reside  there,  and  subjects 
his  property  to  the  law  of  reprisals,  as  a  part  of  the  property  of  the 
nation,  it  would  seem  difficult  to  maintain  that  the  same  consequences 
would  not  follow  in  the  case  of  an  open  and  public  war,  whether 
between  the  adopted  and  native  countries  of  persons  so  domi- 
ciled, or  between  the  former  and  any  other  nation.  If,  then,  nothing 
but  an  actual  removal,  or  bona  Jide  beginning  to  remove,  can  change 
a  national  character  acquired  by  domicil,  and  if,  at  the  time  of  the 
inception  of  the  voyage,  as  well  as  at  the  time  of  capture,  the  prop- 
erty belonged  to  such  domiciled  person  in  his  character  of  a  subject, 
what  is  there  that  does,  or  ought  to  exempt  it  from  capture  by  the 
privateers  of  his  native  country,  if,  at  the  time  of  capture,  he  con  ■ 
tinues  to  reside  in  the  country  of  tlie  adverse  belligerent?  It  is 
contended  that  a  native  or  naturalized  subject  of  one  country,  who  ' 
is  surprised,  in  the  country  where  he  was  domiciled,  by  a  declaration 
of  war,  ought  to  have  time  to  make  his  election  to  continue  there,  or 
to  remove  to  the  country  to  which  he  owes  a  permanent  allegiance, 
and  that,  until  such  election  is  made,  his  property  ought  to  be  pro- 


596  EFFECTS    OF   WAR   AS    BETWEEN   ENEMIES.        [PART  If. 

tected  from  capture  by  the  cruisers  of  the  latter.  This  doctrine  is 
beheved  to  be  as  unfounded  in  reason  and  justice,  as  it  clearly  is  in 
law.  In  the  first  place,  it  is  founded  upon  a  presumption  that  the 
person  will  certainly  remove,  before  it  can  possibly  be  known  whether 
he  may  elect  to  do  so  or  not.  It  is  said  that  this  presumption  ought 
to  be  made,  because,  on  receiving  information  of  the  war,  it  will  be 
his  duty  to  return  home.  This  position  is  denied.  It  is  his  duty 
to  commit  no  acts  of  hostility  against  his  native  country,  and  to 
return  to  her  assistance  when  required  to  do  so ;  nor  will  any  just 
nation,  regarding  the  mild  principles  of  the  law  of  nations,  require 
him  to  take  arms  against  his  native  country,  or  refuse  her  permis- 
sion to  him  to  withdraw  whenever  he  wishes  to  do  so,  unless  under 
peculiar  circumstances,  which,  by  such  removal  at  a  critical  period, 
might  endanger  the  public  safety.  The  conventional  law  of  nations 
is  in  conformity  with  these  principles.  It  is  not  uncommon  to  stipu- 
late in  treaties  that  the  subjects  of  each  shall  be  allowed  to  remove 
with  their  projierty,  or  to  remain  unmolested.  Such  a  stipulation 
does  not  coerce  those  subjects  either  to  remove  or  to  remain.  They 
are  left  free  to  choose  for  themselves ;  and  when  they  have  made 
their  election,  they  claim  the  right  of  enjoying  it  under  the  ti^eaty. 
But  until  the  election  is  made,  their  former  character  continues 
unchanged. 

"  Until  this  election  is  made,  if  his  property  found  upon  the  high 
seas,  engaged  in  the  commerce  of  his  adopted  country,  should  be 
permitted  by  the  cruisers  of  the  other  belligerent  to  pass  free,  under 
the  notion  that  he  may  elect  to  remove,  upon  notice  of  the  war,  and 
should  arrive  safe,  what  is  to  be  done  in  case  the  owner  of  it  should 
afterwards  elect  to  remain  where  he  is  ?  or  if  captured  and  brought 
immediately  to  adjudication,  it  must,  upon  this  doctrine,  be  acquitted 
until  the  election  to  remain  is  made  known.  In  short,  the  point 
contended  for  would  apply  the  doctrine  of  relation  to  cases  where 
the  party  claiming  the  benefit  of  it  may  gain  all,  and  can  lose  noth- 
ing. If  he,  after  the  capture,  should  find  it  his  interest  to  remain 
where  he  is  domiciled,  his  property  embarked  before  his  election  was 
made,  is  safe  ;  and  if  he  finds  it  best  to  return,  it  is  safe  of  course.  It 
is  safe  whether  he  goes  or  stays.  This  doctrine,  producing  such 
contradictory  consequences,  is  not  only  unsupported  by  any  authority, 
but  it  would  violate  principles  long  and  well  established  in  the  prize 
courts  of  England,  and  which  ought  not,  without  strong  reasons 
which  may  render  them  inapplicable  to  this  country,  to  be  dis- 
regarded by  this  court.  The  rule  there  is,  that  the  character  of  the 
property,  during  war,  cannot  be  changed  in.  trdnsitu,  by  any  act  of 
the  party,  subsequent  to  the  capture.    The  rule  indeed  goes  farther  : 


CHAP.  TT.]  TFIE   "  VEXUS."  597 

as  to  the  correctness  of  which  in  its  greatest  extension,  no  opinion 
need  now  be  given  ;  but  it  may  safely  be  affirmed  that  tliis  charge 
cannot  and  ought  not  to  be  affected  by  an  election  of  the  owner  and 
ship])er  of  it  made  subsequent  to  the  capture,  and,  more  especially, 
after  a  knowlege  of  the  capture  is  obtained  by  the  owner.  Observe 
the  consequences  which  would  result  from  it.  The  capture  is  made 
and  known.  The  owner  is  allowed  to  deliberate  whether  it  is  his 
interest  to  remain  a  subject  of  his  adopted,  or  of  his  native  country. 
If  the  capture  be  made  by  the  former,  then  he  elects  to  be  a  subject 
of  that  country ;  if  by  the  latter,  then  a  subject  of  that.  Can  such 
a  privileged  situation  be  tolerated  by  either  belligerent  ?  Can  any 
system  of  law  be  correct,  which  places  an  individual  who  adheres 
to  one  belligerent,  and,  to  the  period  of  his  election  to  remove,  con- 
tributes to  increase  her  wealth,  in  so  anomalous  a  situation  as  to  be 
clothed  with  the  privilege  of  a  neutral,  as  to  both  belligerents?  This 
notion  about  a  temporary  state  of  neutrality  impressed  upon  a  sub- 
ject of  one  of  the  belligerents,  and  the  consequent  exemption  of  his 
property  from  capture  by  either,  until  he  has  had  notice  of  the  war 
and  made  his  election,  is  altogether  a  novel  theory,  and  seems,  from 
the  course  of  the  argument,  to  owe  its  origin  to  a  supposed  hardship 
to  which  the  contrary  doctrine  exposes  him.  But  if  the  reasoning 
employed  on  this  subject  be  correct,  no  such  hardship  can  exist.  P^or 
if,  before  the  election  is  made,  his  property  on  the  ocean  is  liable  to 
capture  by  the  cruisers  of  his  native  and  deserted  country,  it  is  not 
only  free  from  capture  by  those  of  his  adopted  countr}^  but  is  under 
its  protection.  The  privilege  is  supposed  to  be  equal  to  the  disad- 
vantage, and  is  therefore  just.  The  double  privilege  claimed  seems 
too  unreasonable  to  be  granted.  *  *  *  ^ 

1  Condemnation  was  pronounceil  in  all  the  cases. 

Chief  Justice  Marshall  dissented  in  a  vigorous  opinion  from  so  much  of  that  opinion 
as  subjects  to  confiscation  tlie  property  of  a  citizen  shipped  before  a  knowledge  of  the 
war,  and  which  disallows  the  defence  founded  on  an  intention  to  change  his  domicile 
and  to  return  to  the  United  States,  manifested  in  such  a  manner,  and  within  a  reasona- 
ble time  after  knowledfje  of  the  war,  althougli  it  be  subsequent  to  the  capture,  la 
this  dissent,  Livingston,  J.,  concurred.  For  an  elaborate  summary  of  this  dissenting 
opinion,  which  seems  more  in  accordance  witli  reason  tlian  the  one  laid  down  by  the 
majority  of  the  bench,  see  1  Duer's  Marine  Insurance,  505-509.  —  Ed. 


598  EFFECTS   OF  WAE   AS   BETWEEN   ENEMIES.        [PAIIT  IT. 

BEXTZEX   V.   BOYLE. 

Sl^preme  Court  of  the  United  States,   1815. 

(9  Cranch,  191.) 

Marshall,  Ch.  J.,  delivered  the  opinion  of  tbe  court. 

"The  Island  of  Santa  Cruz,  belonging  to  the  kingdom  of  Den- 
mark, was  subdued  during  the  late  war,  by  the  arms  of  his  Britannic 
Majesty.  Adrien  Benjamin  Bentzen,  an  oflficer  of  the  Danish 
government,  and  a  proj)rietor  of  land  therein,  withdrew  from  the 
island  on  its  surrender,  and  has  since  resided  in  Denmark.  The 
property  of  the  inhabitants  being  secured  to  them,  he  still  retained 
his  estate  in  the  island  under  the  management  of  an  agent,  who 
shipped  thirty  hogsheads  of  sugar,  the  product  of  that  estate,  on 
board  a  British  sliip,  to  a  commercial  house  in  London,  on  account 
and  risk  of  the  said  A.  B.  Bentzen.  On  her  passage  she  was  cap- 
tured by  the  American  privateer,  the  Comet,  and  brought  into  Bal- 
timore, where  the  vessel  and  cargo  were  libelled  as  enemy  property. 
A  claim  for  these  sugars  was  put  in  by  Bentzen  ;  but  thej^  were  con- 
demned with  the  rest  of  the  cargo  ;  and  the  sentence  was  affirmed 
by  the  circuit  court.     The  claimant  then  appealed  to  this  court. 

Some  doubt  has  been  suggested  whether  Santa  Cruz,  while  in  the 
possession  of  Great  Britain,  could  properly  be  considered  as  a  British 
island.  But,  for  this  doubt  there  can  be  no  foundation.  Although 
acquisitions  made  during  war  are  not  considered  as  permanent  until 
confirmed  l^y  a  treaty,  yet  to  every  commercial  and  belligerent  pur- 
pose, they  are  considered  as  a  part  of  the  domain  of  the  conqueror, 
so  long  as  he  retains  the  possession  and  government  of  them.  The 
island  of  Santa  Cruz,  after  its  capitulation,  remained  a  British  island 
until  it  was  restored  to  Denmark. 

"  Must  the  product  of  a  plantation  in  that  island,  shipped  by  the 
proprietor  himself,  who  is  a  Dane  residing  in  Denmark,  be  con- 
sidered as  British,  and  therefore  enemy  property  ? 

"  In  arguing  this  question,  the  counsel  for  the  claimant  has  made 
two  points,  1.  That  this  case  does  not  come  within  the  rule  appli- 
cable to  shipments  from  an  enemy  country,  even  as  laid  down  in  the 
British  courts  of  admiralty.  2.  That  the  rule  has  not  been  rightly 
laid  down  in  those  courts  and  consequently  will  not  be  adopted  in 
this.  1.  Does  the  rule  laid  down  in  the  British  courts  of  admiralty 
embrace  this  case  ? 


CHAP,  ir.]  BENTZEN    V.    BOYLE.  599 

"  It  appears  to  the  court  that  the  case  of  the  Phoenix  ^  is  precisely 
in  point.  In  that  case  a  vessel  was  captured  on  a  voyage  from  Suri- 
nam to  Holland,  and  a  part  of  the  cargo  was  claimed  by  persons 
residing  in  Germany,  then  a  neutral  country,  as  the  produce  of  their 
estates  in  Surinam. 

"  The  counsel  for  the  captors  considered  the  law  of  the  case  as 
entirely  settled.  The  counsel  for  the  claimant  did  not  controvert 
this  position.  They  admitted  it ;  but  endeavoured  to  extricate  their 
case  from  the  general  principle  by  giving  it  the  protection  of  the 
treaty  of  Amiens.  In  pronouncing  his  opinion.  Sir  William  Scott 
lays  down  the  rule  thus :  '  Certainly  nothing  can  be  more  decided 
and  fixed,  as  the  principles  of  this  court  and  the  Supreme  Court  upon 
very  solemn  arguments,  than  that  the  possession  of  the  soil  does  im- 
press upon  the  owner  the  character  of  the  country,  whatever  the 
local  residence  of  the  owner  may  be.  This  has  been  so  repeatedly 
decided,  both  in  this  and  the  Superior  Court,  that  it  is  no  longer  open 
to  discussion.  No  question  can  be  made  on  the  point  of  law,  at  this 
day.' 

"  Afterwards,  in  the  case  of  the  J1-ow  Anna  Catharina,  5  C.  Rob., 
167,  Sir  William  Scott  lays  down  the  rule,  and  states  its  reason. 
*  It  cannot  be  doubted,'  he  says,  '  that  there  are  transactions  so  radi- 
cally and  fundamentally  national  as  to  impress  the  national  charac- 
ter, independent  of  peace  or  war,  and  the  local  residence  of  the  parties. 
The  produce  of  a  person's  own  plantation  in  the  colony  of  the  enemy, 
though  shipped  in  time  of  peace,  is  liable  to  be  considered  as  the 
property  of  the  enemy,  by  reason  that  the  proprietor  has  incor- 
porated himself  with  the  permanent  interests  of  the  nation  as  a 
holder  of  the  soil,  and  is  to  be  taken  as  a  part  of  that  country,  in 
that  particular  transaction,  independent  of  his  own  personal  resi- 
dence and  occupation.' 

"  This  rule  laid  down  with  so  much  precision,  does  not,  it  is  con- 
tended, embrace  Mr.  Bentzen's  claim,  because  he  has  not  'incorporated 
himself  with  the  permanent  interests  of  the  nation.'  He  acquired 
the  property  while  Santa  Cruz  was  a  Danish  colony,  and  he  with- 
drew from  the  island  when  it  became  British. 

«  This  distinction  does  not  appear  to  the  court  to  be  a  sound  one. 
The  identification  of  the  national  character  of  the  owner  with  that 
of  the  soil,  in  the  particular  transaction,  is  not  placed  on  the  disposi- 
tion with  which  he  acquires  the  soil,  or  on  his  general  character. 
The  acquisition  of  land  in  Santa  Cruz  binds  him,  so  far  as  respects 
that  land,  to  the  fate  of  Santa  Cruz,  whatever  its  destiny  may  be. 
While  that  island  belonged  to  Denmark,  the  produce  of  the  soil, 

1 6  C.  Rob.,  20. 


600  EFFECTS   OF   WAR   AS   BETWEEN    ENEMIES.        [PAET  II. 

while  unsold,  was,  according  to  this  rule,  Danish  property,  what- 
ever might  be  the  general  character  of  the  particular  proprietor. 
When  the  island  became  British,  the  soil  and  its  produce,  while  that 
produce  remained  unsold,  were  British. 

"The  general  commercfal  or  political  character  of  Mr.  Bentzen 
could  not,  according  to  this  rule,  affect  this  particular  transaction. 
Although  incorporated,  so  far  as  respects  his  general  character,  with 
the  permanent  interests  of  Denmark,  he  was  incorporated  so  far  as 
respects  his  plantation  in  Santa  Cruz,  with  the  permanent  interests 
of  Santa  Cruz,  which  was  at  that  time  British ;  and  though  as  a 
Dane,  he  was  at  war  with  Great  Britain,  and  an  enemy,  yet,  as  a 
proprietor  of  land  in  Santa  Cruz,  he  was  no  enemy ;  he  could  ship 
his  produce  to  Great  Britain  in  perfect  safety. 

"  The  case  is  certainly  within  the  rule  as  laid  down  in  the  British 
courts.  The  next  inquiry  is  :  how  far  that  rule  will  be  adopted  in 
this  country  ? 

"  The  law  of  nations  is  the  great  source  whence  we  derive  those 
rules,  respecting  neutral  and  belligerent  lights,  which  are  recognized 
by  all  civilized  and  commercial  states  throughout  Europe  and  America. 
This  law  is  in  part  unwritten,  and  in  part  conventional.  To  ascer- 
tain that  which  is  unwritten,  we  resort  to  the  great  principles  of 
reason  and  justice;  but,  as  these  principles  will  be  differently  un- 
derstood by  different  nations  under  different  circumstances,  we  con- 
sider them  as  being  in  some  degree,  fixed  and  rendered  stable  by 
a  series  of  judicial  decisions.  The  decisions  of  the  courts  of  every 
country,  so  far  as  they  are  founded  on  a  law  common  to  every 
country,  will  be  received,  not  as  authority,  but  with  respect.  The 
decisions  of  the  courts  of  every  country  show  how  the  law  of  nations, 
in  the  given  case,  is  understood  in  that  country,  and  will  be  con- 
sidered in  adopting  the  rule  which  is  to  prevail  in  this. 

"Withouttaking  a  comparative  view  of  the  justice  or  fairness  of  the 
rules  established  in  the  British  courts,  and  of  those  established  in  the 
courts  of  other  nations,  there  are  circumstances  not  to  be  excluded  from 
consideration,  which  give  to  those  rules  a  claim  to  our  attention,  that 
we  cannot  entirely  disregard.  The  United  States  having,  at  one 
time,  formed  a  component  part  of  the  British  Empire,  tlieir  prize  law 
was  our  prize  law.  When  we  separated,  it  continued  to  be  our  prize 
law,  so  far  as  it  was  adapted  to  our  circumstances  and  w^as  not 
varied  by  the  power  which  was  capable  of  changing  it. 

"  It  will  not  be  advanced,  in  consequence  of  this  former  relation 
between  the  two  countries,  that  any  obvious  misconstruction  of 
public  law  made  by  the  British  courts,  will  be  considered  as  forming 
a  rule  for  the  American  courts,  or  that  any  recent  rule  of  the  British 


CHAP,  ir.]  THE   "PRIZE   CASES."  GOl 

courts  is  entitled  to  more  respect  than  the  recent  rules  of  other 
countries.  But  a  case  professing  to  be  decided  on  ancient  principles 
will  not  be  entirely  disregarded,  unless  it  be  very  unreasonable,  or  be 
founded  on  a  construction  rejected  by  other  nations. 

"  The  rule  laid  down  in  the  Fhcenix  is  said  to  be  a  recent  rule,  be- 
cause a  case  solemnly  decided  before  the  Lords  Commissioners  in 
1783,  is  quoted  in  the  margin  as  its  authority.  But  that  case  is  not 
suggested  to  have  been  determined  contrary  to  former  practice  or 
former  opinions.  Xor  do  we  perceive  any  reason  for  supposing  it  to 
be  contrary  to  the  rule  of  other  nations  in  a  similar  case. 

"  The  opinion  that  the  ownership  of  the  soil  does,  in  some  degree, 
connect  the  owner  with  the  property,  so  far  as  respects  that  soil,  is 
an  opinion  which  certainly  prevails  very  extensively.     It  is  not  an 
unreasonable  opinion.     Personal  property  may  follow  the  person 
anywhere ;  and  its  character,  if  found  on  the  ocean,  may  depend  on 
the  domicil  of  the  owner.     But  land  is  fixed.     Wherever  the  owner 
raay  reside,  that  land  is  hostile  or  friendly  according  to  the  condition  \ 
of  the  country  in  which  it  is  placed.    It  is  no  extravagant  perversion  j 
of  principle,  nor  is  it  a  violent  offense  to  the  course  of  human  opinion! 
to  say  that  the  proprietor,  so  far  as  respects  his  interest  in  this  land, 
partakes  of  this  character ;  and  tliat  the  produce,  Avhile  the  owner ' 
remains  unchanged,  is  subject  to  the  same  disabilities.    In  condemn- 
ing the  sugars  of  Mr.  Bentzen  as  enemy  property,  this  court  is  of 
opinion  that  there  was  no  error,  and  the  sentence  is  affirmed  with 
costs." 


THE   "PRIZE   CASES." 

Supreme  Court  of  the  United  States,  1862. 

(2  Black,  671.) 

II.  1 "  We  come  now  to  the  consideration  of  the  second  question. 
What  is  included  in  the  term  '  enemies'  property  ? ' 

"Is  the  property  of  all  persons  residing  within  the  territory  of  the 
states  now  in  rebellion,  captured  on  the  high  seas,  to  be  treated  as 
'enemy's  property'  Avhether  the  owner  be  in  arms  against  the 
government  or  not  ? 

"The  right  of  one  belligerent  not  only  to  coerce  the  other  by 
direct  force,  but  also  to  cripple  his  resources  by  the  seizure  or  de- 
struction of  his  property,  is  a  necessary  result  of  a  state  of  war. 

^  For  first  part  of  tliis  Caee,  eee  p.  47o,  ante.  — Ed. 


602  EFFECTS    OF    WAR    AS   BETWEEN   ENEMIES.       [PART  11. 

Money  and  Avealth,  the  products  of  agriculture  and  commerce,  are 
said  to  be  tlie  sinews  of  war,  and  as  necessary  in  its  conduct  as 
numbers  and  physical  force.  Hence  it  is,  that  the  laAvs  of  war  rec- 
ognize the  right  of  a  belligerent  to  cut  these  sinews  of  the  power  of 
the  enemy,  by  capturing  his  property  on  the  high  seas. 

"  The  appellants  contend  that  the  term  '  enemy '  is  properly  ap- 
plicable to  those  only  who  are  subjects  or  citizens  of  a  foreign  state 
at  war  with  our  own.  They  quote  from  the  pages  of  the  common 
law,  which  say,  '  that  persons  who  wage  war  against  the  king  may 
be  of  two  kinds,  subjects  or  citizens.  The  former  are  not  proper 
enemies,  but  rebels  and  traitors ;  the  latter  are  those  that  come 
properly  under  the  name  of  enemies.' 

"  They  insist,  moreover,  that  the  President  himself,  in  his  proc- 
lamation, admits  that  great  numbers  of  the  persons  residing  within 
the  territories  in  the  possession  of  the  insurgent  government,  are 
loyal  in  their  feelings,  and  forced  by  compulsion  and  the  violence  of 
the  rebellious  and  revolutionary  party  and  its  '  de  facto  government ' 
to  submit  to  their  laws  and  assist  in  their  scheme  of  revolution ; 
that  the  acts  of  the  usurping  government  cannot  legally  sever  the 
bond  of  their  allegiance ;  they  have,  therefore,  a  co-relative  right  to 
claim  the  protection  of  the  government  for  their  persons  and  prop- 
erty, and  to  be  treated  as  loyal  citizens,  till  legally  convicted  of 
having  renounced  their  allegiance  and  made  war  against  the  govern- 
ment by  treasonably  resisting  its  laws. 

"  They  contend,  also,  that  insurrection  is  the  act  of  individuals, 
and  not  of  a  government  or  sovereignty ;  that  the  individuals  en- 
gaged are  the  subjects  of  law.  That  confiscation  of  their  property 
can  be  effected  only  under  a  municipal  law.  That  by  the  law  of  the 
land  such  confiscation  cannot  take  place  without  the  conviction  of 
the  owner  of  some  offence,  and  finally  that  the  secession  ordinances 
are  nnllities  and  ineffectual  to  release  any  citizen  from  his  allegiance 
to  the  national  government,  and  consequently  that  the  constitution 
and  laws  of  the  United  States  are  still  operative  over  persons  in  all 
the  states  for  punishment  as  well  as  protection. 

"  This  argument  rests  on  the  assumption  of  two  propositions,  each 
of  which  is  without  foundation  on  the  established  law  of  nations. 

"  It  assumes  that  where  a  civil  war  exists,  the  party  belligerent 
claiming  to  be  sovereign,  cannot  for  some  unknown  reason,  exercise 
the  rights  of  belligerents,  although  the  revolutionary  party  may. 
]3eing  sovereign,  he  can  exercise  only  sovereign  rights  over  the  other 
party. 

"  The  insurgents  may  be  killed  on  the  battle-field  or  by  the  ex- 
ecutioner ;  his  property  on  land  may  be  confiscated  under  the  munic- 


CHAP.    II.]  THE    "PRIZE   CASES."  603 

ipal  laAV ;  but  the  commerce  on  the  ocean,  which  supplies  the  rebels 
with  means  to  support  the  war,  cannot  be  made  the  subject  of  capture 
under  the  laws  of  war,  because  it  is  'unconstitutional ' ! ! !  Now,  it 
is  a  proposition  never  doubted,  that  the  belligerent  party  who  claims 
to  be  sovereign,  may  exercise  both  belligerent  and  sovereign  rights ; 
(see  4  Cr.,  272).  Treating  the  other  party  as  a  belligerent  and  using 
only  the  milder  modes  of  coercion  which  the  law  of  nations  has  in- 
troduced to  mitigate  the  rigors  of  war,  cannot  be  a  subject  of  com- 
plaint by  the  party  to  whom  it  is  accorded  as  a  grace  or  granted  as 
a  necessity.  We  have  shown  that  a  civil  war  such  as  that  now 
waged  between  the  Northern  and  Southern  states,  is  properly  con. 
ducted  according  to  the  humane  regulations  of  public  law  as  regards 
capture  on  the  ocean. 

*' Under  the  very  peculiar  constitution  of  this  government,  al- 
though the  citizens  owe  supreme  allegiance  to  the  Federal  govern- 
ment, they  owe  also  a  qualified  allegiance  to  the  state  in  which  they 
are  domiciled. 

"  Their  persons  and  property  are  subject  to  its  laws. 

"Hence,  in  organizing  this  rebellion,  they  have  acted  as  states 
claiming  to  be  sovereign  over  all  persons  and  property  within  their 
respective  limits,  and  asserting  a  right  to  absolve  their  citizens  from 
their  allegiance  to  the  Federal  government.  Several  of  these  states 
have  combined  to  form  a  new  confederacy,  claiming  to  be  acknowl- 
edged by  the  world  as  a  sovereign  state.  Their  right  to  do  so  is  now 
being  decided  by  wager  of  battle. 

"  The  ports  and  territory  of  each  of  these  states  are  held  in  hostility 
to  the  general  government.  It  is  no  loose,  unorganized  insurrection, 
having  no  defined  boundary  or  possession.  It  has  a  boundary  marked 
by  lines  of  bayonets,  and  which  can  be  crossed  only  by  force, — south  of 
this  line  is  enemies'  territory,  because  it  is  claimed  and  held  in  pos- 
session by  an  organized,  hostile  and  belligerent  power. 

"  All  persons  residing  within  this  territory  whose  property  may 
be  used  to  increase  the  revenues  of  the  hostile  power  are,  in  this 
contest,  liable  to  be  treated  as  enemies,  though  not  foreigners.  They 
have  cast  off  their  allegiance  and  made  war  on  their  government, 
and  are  none  the  less  enemies  because  they  are  traitors. 

"  But  in  defining  the  meaning  of  the  term  '  enemies'  property,'  we 
shall  be  led  into  error  if  we  refer  to  Fleta  and  Lord  Coke  for  their 
definition  of  the  word  '  enemy '.  It  is  a  technical  phrase  peculiar  to 
prize  courts,  and  depends  upon  principles  of  public  policy  as  distin- 
guished from  the  common  law. 

"  Whether  property  be  liable  to  capture  as  '  enemies'  property ' 
does  not  in  any  manner  depend  on  the  personal  allegiance  of  the 


604  EFFECTS    OF    WAR    AS    BETWEEN"    ENEMIES.       [PAFvT  II. 

owner.  '  It  is  the  illegal  traffic  that  stamps  it  as  "  enemies'  prop- 
erty." It  is  of  no  consequence  whether  it  belongs  to  an  ally  or  a 
citizen.  8  Cr.,  384.  The  owner,  ^:>ro /^aci'i'ce,  is  an  enemy.'  3  Wash. 
C.  C.  R.,  183. 

"  The  produce  of  the  soil  of  the  hostile  territory,  as  well  as  other 

;  property  engaged  in  the  commerce  of  the  hostile  power,  as  the  source 

'  of  its  wealth  and  strength,  are  always  regarded  as  legitimate  prize, 

without  regard  to  the  domicil  of  the  owner,  and  much  more  so  if  he 

reside  and  trade  within  their  territory."  ^ 

1  Domicil.  —  "A  commercial  domicil,"  says  Mr.  Dicey,  "is  such  a  residence  in  a 
country  for  tiie  purpose  of  trading  there  as  mikes  a  person's  trade  or  business  contrib- 
ute to  or  form  part  of  tlie  resources  of  sucli  country,  and  renders  it,  therefore,  reason- 
able tliat  his  hostile,  friendly,  or  neutral  character  should  be  determined  by  reference 
I  to  the  character  of  such  country.  When  a  person's  civil  domicil  is  in  question,  the 
matter  to  be  determined  is  whether  he  has  or  has  not  so  settled  in  a  given  country  as 
to  have  made  it  iiis  home.  Wlien  a  person's  commercial  domicil  is  in  question,  the 
matter  to  be  determined  is  whether  he  is  or  is  not  residing  in  a  given  country  with  the 
intention  of  continuing  to  trade  there." 

(Dicey  on  Domicil,  345;  Conflict  of  Laws,  S6  et  seq.,  especially  appendix,  note  3  on 
Definition  of  Domicil,  727-73.5 ;  note  4,  on  Commercial  domicil  in  time  of  war,  735-740, 
for  reference  to  approved  texts,  cases,  opinions,  and  criticisms  thereof.) 
,  In  the  case  of  the  Antonia  Johanna,  1816,  1  Wheaton,  1-59,  the  Supreme  Court  of 
the  United  States  held  that  the  share  of  a  partner  in  a  neutral  house  is,  jure  belli,  sub- 
ject to  confiscation  where  his  own  domicil  is  in  a  hostile  country.  3  Wharton's 
Digest,  343. 

In  the  case  of  the  Freundschaft,  1810,  4  Wiieaton.  lO-S,  the  court  held,  that  the  prop- 
erty of  a  house  of  trade  established  in  the  enemy's  country  is  condemnable  as  prize, 
whatever  may  be  the  personal  domicil  of  the  partners.     3  Wharton's  Digest,  343. 

In  Ni'iel  Go'd  Mining  Co.,  Lim.v.  ffoode,  1901,  17  L.  T.  R.  711,  it  was  held  that  the 
company  had  only  a  commercial  domicil  in  the  Transvaal,  and  that  this  did  not 
invest  it  with  enemy  character.  In  a  note  to  this  case  in  15  Harv.  Law  Rev.  237,  it 
is  said  :  "  The  status  of  the  corporation  and  not  that  of  its  members  was  in  question, 
and  in  the  case  of  corporations,  as  in  that  of  individuals,  enemy  character  is  deter- 
mined by  domicil.  Societi/,  ^r.  v.  Wheeler,  2  Gall.  105,  131  ;  The  Danckehaar  A/ri- 
caan,  1  Rob.  107.  Even  if  the  plaintiff  company  be  regarded  as  merely  commercially 
domiciled,  it  takes  enemy  character  on  the  outbreak  of  war,  for  when  a  foreign  corpora- 
tion establishes  a  permanent  agency  in  a  state,  it  is,  in  time  of  war,  as  to  the  business 
transacted  there,  in  the  same  position  as  a  domestic  corp^iration.  Martino  v.  Interna- 
tional Life  Ins.  Soc,  53  X.  Y.  339.  Yet  the  law  covering  such  a  company  as  the 
plaintiff  in  the  principal  case  is  stronger  still.  An  incorporated  company  that  takes 
letters  of  incorporation  in  a  second  state  has  a  separate  legal  domicil  in  that  state. 
Martin  v.  Baltimore  6f  Ohio  R.  R.  Co.,  151  U.  S.  673.  Tiie  plaintiff  company  must 
tiierefore  be  regarded  as  having  enemy  character.  The  court  professes  to  bring  the 
case  within  the  rule  of  the  Venus,  8  Cranch,  253.  In  that  case  the  owner  had  aban- 
doned his  foreign  domicile  and  business  bona  fide ;  but  in  the  principal  case  there  was 
nothing  equivalent  to  such  abandonment  by  the  corporation.  The  decision  can  be 
explained  only  by  the  supposed  humanitarian  tendency  of  the  present  day  in  applying 
the  rules  of  war." 

Other  cases  on  Commercial  Domicil  are  :  Bell  v.  Reid,  1  Maul.  &  Selw.  726  (1813)  ; 


CHAP.  II.]  MITCHELL   V.    UNITED    STATES.  605 

MITCHELL   V.    UNITED    STATES. 
Supreme  Court  of  the  United  States,  1874. 

(21    Wallace,  350  ) 

Mr.  Justice  Swayne  delivered  tlie  opinion  of  the  court,  as  follows: 
At  the  time  when  Mitchell  passed  within  the  rebel  lines  the  war 
between  the  loyal  and  the  disloyal  States  was  flagrant.  It  speedily 
assumed  the  largest  proportions.  Important  belligerent  rights  were 
conceded  by  the  United  States  to  the  insurgents.  Their  soldiers  when 
captured  were  treated  as  prisoners  of  war,  and  were  exchanged  and 
not  held  for  treason.  Their  vessels  when  captured  were  dealt  with  by 
our  prize  courts.  Their  ports  were  blockaded  and  the  blockades  pro- 
claimed to  neutral  nations.  Property  taken  at  sea,  belonging  to 
persons  domiciled  in  the  insurgent  States,  was  uniformly  held  to  be 
confiscable  as  enemy  property.  All  these  things  were  done  as  if  the 
war  had  been  a  public  one  with  a  foreign  nation.  The  Prize  Cases, 
2  Black,  687 ;  3frs.  Alexander's  Cotton,  2  Wallace,  417  ;  Mauran  v. 
Tlie  Insurance  Company,  6  id.  1.  The  laws  of  war  were  applied  in 
like  manner  to  intercourse  on  land  between  the  inhabitants  of  the 
loyal  and  the  dishwal  States.  It  was  adjudged  that  all  contracts  of 
tlie  inhabitants  of  the  former  with  the  inhabitants  of  the  latter  were 
illegal  and  void.  It  was  held  that  they  conferred  no  rights  which 
could  be  recognized.  Such  is  the  law  of  nations,  flagrante  hello,  as 
administered  by  courts  of  justice.  Vattel,  §  220;  Griswold  v.  Wad- 
dington,  16  Johnson,  438;  Cooledge  v.  Guthrie,  8  American  Law 
Eegister,  N.  S.  20  ;  Coppel  v.  Hall,  7  Wallace,  542 ;  U7iited  States  v. 
Grossniayer,  9  id.  72;  Montgomery  v.  United  States,  15  id.  400; 
United  States  v.  Lapene,  17  id.  602;  Cutner  v.  United  States,  id. 
516. 

While  such  was  the  law  as  to  dealings  between  the  inhabitants  of 
the  respective  territories,  contracts  between  the  inhabitants  of  the 
rebel  States  not  in  aid  of  the  rebellion  were  as  valid  as  those,  between 

Wilson  V.  Man/at,  8  T.  R.  45  (1798)  ;  T/ie  San  Jose  Indiano,  2  Gall.  268  (1814)  ;  The 
Junye  Kla.-isina,  5  C.  Rob.  302-304  (1804) ;  The  Herman,  4  C.  Rob.  228  (1802)  ;  S/mren- 
buri)  V.  Bannali/ne,  1  Bos.  &  Piil.  163  (1797)  ;  The  Abo,  1  Spinks,  349  (1854) ;  The  Ger- 
aMino,  11  Moo.  P.  C.  C.  88  (1857)  ;  The  Bnliicn,  11  Moo.  P.  C.  C.  141  (1857)  ;  Airs. 
Alexander's  Cotton,  2  Wall.  404  (1864)  ;   The  Flying  Scad,  6  Wall.  263  (1867). 

For  the  view  that  a  neutral  merchant  domiciled  in  a  belligerent  country  does  not 
acquire  a  belligerent  character,  and  that  his  property  at  sea  is  neutral  property,  see 
Le.  Hardy  v.  La  Vultigeante,  Conseil  des  Prises,  anix.  (1  Pistoye  et  Duverdy,  321).  —  Ed. 


606 


EFFECTS   OF   WAPw   AS   BETWEEN   ENEMIES.      [PART  II. 


themselves,  of  the  inhabitants  of  the  loyal  States.  Hence  this  case 
turns  upon  the  point  whether  the  appellant  was  domiciled  in  the 
Confederate  States  when  he  bought  the  cotton  in  question. 

When  he  took  his  departure  for  the  South  he  lived  and  was  in 
business  at  Louisville.  He  returned  thither  when  Savannah  was 
captured  and  his  cotton  was  seized.  It  is  to  the  intervening  tract  of 
time  we  must  look  for  the  means  of  solving  the  question  before  us. 
There  is  nothing  in  the  record  which  tends  to  show  that  when  he  left 
Louisville  he  did  not  intend  to  return,  or  that  while  in  the  South  he 
had  any  purpose  to  remain,  or  that  when  he  returned  to  Louisville  he 
had  any  intent  other  than  to  live  there  as  he  had  done  before  his 
departure.  Domicile  has  been  thus  defined :  "  A  residence  at  a  par- 
ticular place  accompanied  with  positive  or  presumptive  proof  of  an 
intention  to  remain  there  for  an  unlimited  time."  Giiger  v.  Daniely 
1  Binney,  349,  note.  This  definition  is  approved  by  Phillimore  in  his 
work  on  the  subject.  Pane  13.  By  the  term  domicile,  in  its  ordinary 
acceptation,  is  meant  the  place  where  a  person  lives  and  has  his  home. 
Story's  Conflict  of  Laws,  §  4L  The  place  where  a  person  lives  is 
taken  to  be  his  domicile  until  facts  adduced  establish  the  contrary. 
Bruce  v.  Bruce,  2  Bosanquet  &  Puller,  228,  note  ;  Bamjnle  v.  Johnstone, 
3  Vesey,  201 ;  Stanley  v.  Bernes,  3  Haggard's  Ecclesiastical  Reports, 
437 ;  Best  on  Presumptions,  235. 

The  proof  of  the  domicile  of  the  claimant  at  Louisville  is  sufficient. 
There  is  no  controversy  between  the  parties  on  that  proposition. 
We  need  not,  therefore,  further  consider  the  subject. 

A  domicile  once  acquired  is  presumed  to  continue  until  it  is  shown 
to  have  been  changed.  Somervil'e  v.  SomerviUe,  5  Vesey,  787 ;  Har- 
vard Coll.  V.  Gore,  5  Pickering,  370 ;  Wharton's  Conflict  of  Laws,  §  55. 
Where  a  change  of  domicile  is  alleged  the  burden  of  proving  it  rests 
upon  the  person  making  the  allegation.  Crookenden  v.  Fuller,  1 
Swabey  &  Tristam,  441  ;  Hodgson  v.  De  Buehesne,  12  Moore's  Privy 
Council,  288  (1858).  To  constitute  the  new  domicile  two  things  are 
indispensable:  First,  residence  in  the  new  locality;  and,  second,  the 
intention  to  remain  there.  Tlie  change  cannot  be  made  except  facto 
et  animo.  Both  are  alike  necessary.  Either  without  the  other  is 
insufficient.  Mere  absence  from  a  fixed  home,  however  long  continued, 
cannot  work  the  change.  There  must  be  the  anhmis  to  change  the 
prior  domicile  for  another.  Until  the  new  one  is  acquired,  the  old 
one  remains.  Wharton's  Conflict  of  Laws,  §  55,  and  the  authorities 
there  cited.  These  principles  are  axiomatic  in  the  law  upon  the 
subject. 

When  the  claimant  left  Louisville  it  would  have  been  illegal  to  take 
up  his  abode  in  the  territory  whither  he  was  going.     Such  a  purpose  is 


CHAP.  II.]  THE    "  SALLY."  607 

not  to  be  presumed.  Tlie  presumption  is  the  other  way.  To  be 
established  it  must  be  proved.  12  Moore's  Privy  Council,  supra. 
Among  the  circumstances  usually  relied  upon  to  establish  the  animus 
manendi  are:  Declarations  of  the  party;  the  exercise  of  political' 
rights;  the  payment  of  personal  taxes;,  a  house  of  residence,  and  a] 
place  of  business.  Phillimore,  100 ;  Wharton,  §  62,  and  jjost.  All 
these  indicia  are  wanting  in  the  case  of  the  claimant. 

The  rules  of  law  applied  to  the  affirmative  facts,  without  the  aid  of 
the  negative  considerations  to  which  we  have  adverted,  are  conclusive 
against  him.  His  purchase  of  the  cotton  involved  the  same  legal 
consequences  as  if  it  had  been  made  by  an  agent  whom  he  sent  to 
make  it.  Judgment  affirmed. 


Section  33.  —  Ownership  of  Goods  in  Transit. 


THE    "SALLY." 

Lords,  1795. 

(3  C.  Robinson,  300,  note.) 

The  SaUt/  was  a  case  of  a  cargo  of  corn  shipped  3[areh,  1793,  by 
Steward  and  Plunket,  of  Baltimore,  ostensibl}^  for  the  account  and 
risk  of  Conyngham,  Xesbit  &  Co.,  of  Philadelphia,  and  consigned  to 
thera  or  their  assir/us:  By  an  endorsement  of  the  bill  of  lading,  it 
was  further  agreed  that  the  ship  should  proceed  to  Havre  de  Grace, 
and  there  wait  such  time  as  might  be  necessary,  the  orders  of  the 
consignee  of  the  said  cargo  (the  mayor  of  Havre)  either  to  deliver 
the  same  at  the  port  of  Havre,  or  proceed  therewith  to  any  one  port 
without  the  ^Mediterranean,  on  freight  at  the  rate  of  5s.  per  barrel  on 
delivery  at  Havre,  and  5s.  6(7.  at  a  second  port,  the  freight  to  be 
settled  by  the  shippers  in  America  according  to  agreement. 

Amongst  the  papers  was  a  concealed  letter  from  Jean  Ternant,  the 
minister  of  the  French  Republic  to  the  United  States,  in  which  he 
informs  the  minister  of  foreign  affairs  in  France.  "  The  house  of 
Conyngham  &  Co.,  already  known  to  the  ministers,  by  their  former 
operations  for  France,  is  charged  by  me  to  procure  without  delay,  a 
consignment  of  22,000  bushels  of  wheat,  8,000  barrels  of  fine  fl.our, 
900  barrels  of  salted  beef  from  New  England.  The  conditions  stipu- 
lated are  the  same  as  those  of  the  contract  of  2d  November,  1792, 
with  the  American  citizens.  Swan  &  Co.,  for  a  like  supply  to  be 
made  to  the  Antilles,  namely,  that  the  grain,  flour,  and  beef  are  to 
be  paid  at  the  current  price  of  the  markets  at  the  time  of  their 
being  shipped ;  that  the  freights  shall  be  at  the  lowest  course  in  the 


608  EFFECTS    OF    WAR    AS    BETWEEN    ENEMIES.       [PART  IT. 

ports ;  that  an  insurance  should  be  on  the  whole  ;  and  that  a  com- 
mission of  five  per  cent,  shall  be  allowed  for  all  the  merchants' 
expenses  and  fees.  It  has  been,  moreover,  agreed,  considering  the 
actual  reports  of  war,  that  the  whole  shall  be  sent  as  American 
property  to  Havre  and  to  Nantes,  with  power  to  our  government  of 
sending  the  ships  to  other  ports  conditional  on  the  usual  freight. 
As  you  have  not  signified  to  me  to  whom  these  cargoes  ought  to  be 
delivered  in  our  ports,  I  shall  provide  each  captain  with  a  letter  to 
the  mayor  of  the  place." 

There  was  also  a  letter  from  Jean  Ternant  to  the  mayor  of  the 
municipality  of  Havre.  "  Our  government  having  ordered  me  to 
send  supplies  of  provisions  to  your  port,  I  inform  you  that  the 
bearer  of  this,  commanding  the  American  ship,  the  Sally,  is  laden 
with  a  cargo  of  wheat,  of  which  he  will  deliver  you  the  bill  of 
lading." 

To  the  12th  and  COtli  interrogatories  the  master  deposed,  "that  he 
believes  the  flour  was  the  property  of  the  French  government,  and, 
on  being  unladen,  xoould  have  immediately  become  the  property  of  the 
French  government." 

In  the  argument  it  was  insisted,  on  the  part  of  the  claimants,  that 
the  cargo  was  to  be  considered  as  the  property  of  the  American 
merchants ;  that  it  had  been  ordered  by  them,  to  be  supplied  and 
delivered  at  a  certain  place;  and  that  under  the  general  principle 
of  law,  property  was  not  considered  to  be  divested  between  the 
vendor  and  vendee  till  actual  delivery. 

It  was  contended,  that  the  contract  remained  executory  till  the 
completion  by  delivery  in  Europe ;  that  the  payment  was  contingent 
on  the  completion  of  the  contract  in  this  form,  and  that  no  money 
had  passed,  nor  any  compensation  or  agreement  had  intervened  to 
produce  an  absolute  conversion  of  the  i)roperty ;  and  it  was  prayed 
that  the  court  would  admit  farther  proof  to  ascertain  that  circum- 
stance. 

On  the  part  of  the  captors  it  was  replied,  that  the  general  rule  of 
law  subsisting  between  vendor  and  vendee  in  a  commercial  trans- 
action, referring  only  to  the  contracting  parties,  and  not  aft'ecting 
the  rights  of  third  persons,  could  not  apply  to  contracts  made  in 
time  of  war,  or  in  contemplation  of  war,  where  the  rights  of  a  bellig- 
erent nation  intervened ;  that  the  effect  of  such  a  contract  as  the 
present  would  be  to  protect  the  trade  of  the  contracting  belligerent 
from  his  enemy ;  and  that  if  it  could  be  allowed,  it  would  put  an  end 
to  all  capture.  It  was  said  to  be  a  known  principle  of  the  prize 
court,  that  neutral  property  must  be  proved  to  be  neutral  at  all 
periods  from  the  time  of  shipment,  without  intermission,  to  the 


CHxVP.  II.]  THE    PACKET    "  DE    BILBOA."  609 

arrival  and  subsequent  sale  in  the  port  of  the  enemy ;  that  the  twelfth 
and  twentieth  interrogatories  were  framed  with  this  view  to  inquire, 
"  whether  on  its  arrival,  etc.,  it  shall  and  will  belong  to  the  same 
owner  and  no  other,  etc.,"  and  a  reference  was  made  to  the  case  of 
the  Charles  Havenerswerth  in  1741,  in  which  the  form  of  attestation 
was  directed  to  be  prepared  by  the  whole  bar,  and  was  established 
in  the  present  form  to  ascertain  the  property  at  the  several  periods 
of  shipme))t,  and  arrival  in.  the  enemy's  ports^ — in  cases  where  affi- 
davits were  to  be  received  to  supply  the  defects  of  the  original 
evidence,  in  the  place  of  plea  and  proof. 

The  Court : — "  It  has  always  been  the  rule  of  the  prize  courts,  that 
property  going  to  be  delivered  in  the  enemy's  country,  and  under  a  i 
contract  to  become  the  property  of  the  enemy  immediately  on  arrival,  | 
if  taken  in  transitu,  is  to  be  considered  as  enemies'  property.    ^Yhere  ' 
the  contract  is  made  in  time  of  peace  or  without  any  contemplation 
of  a  war,  no  such  rule  exists : — But  in  a  case  like  the  present,  where 
the  form  of  the  contract  -u'as  framed  directly  for  the  purpose  of  ob- 
viating the  danger  apprehended  from  approaching  hostilities,  it  is  a 
rule  which  unavoidably  must  take  place.    The  bill  of  lading  expresses 
account  and  risk  of  the  American  merchants  ;  but  papers  alone  make 
no  proof,  unless  supported  by  the  depositions  of  the  master.    Instead 
of  supporting  the  contents  of  his  papers,  the  master  deposes,  '  that 
on  arrival  the   goods  would  become  the  property  of  the  French 
government,'  and  all  the  concealed  papers  strongly  support  him  in 
this  testimony :    The  evidentia  rei  is  too  strong  to  admit  farther  ^ 
proof.     Supposing  that  it  was  to  become  the  property  of  the  enemy  f 
on  delivery,  capture  is  considered  as  delivery :  The  captors,  by  the 
rights  of  war,  stand  in  the  place  of  the  enemy,  and  are  entitled  to  a 
condemnation  of  goods  passing  under  such  a  contract,  as  of  enemy's 
property.     On  every  principle  on  which  Prize  Courts  can  proceed, 
this  cargo  must  be  considered  as  enemy's  property. 

"  Condemned. " 


THE   PACKET   '•' DE   BILBOA." 

High  Court  of  Admiralty,  1799. 

(2  C.  Robinson,  133.) 

Judgment, — Sir  W.  Scott  : — 

"  This  is  a  claim  of  a  peculiar  nature  for  goods  sent  by  British 
subjects  to  Spain,  shipped  before  hostilities,  during  the  time  of  that 

39 


610  EFFECTS    OF    WAR    AS    BETWEEN    ENEMIES.        [PART  H. 

situation  of  the  two  countries,  of  which  it  was  unknown,  even  to 
our  government,  what  would  be  the  issue  between  them.  There 
appears  to  be  no  ground  to  say  that  this  contract  was  influenced  by 
speculations  on  the  prospect  of  a  war,  or  that  anything  has  been 
specially  done  to  avoid  the  risks  of  war.  It  is  shown  in  the  affida- 
vit of  the  claimant  '  that  this  is  the  constant  habit  and  practice  of 
this  trade ; '  whether  it  is  the  practice  of  the  Spanish  trade  gen- 
erally, or  only  the  particular  mode  of  these  individuals  in  carry- 
ing on  commerce  together  is  not  material,  as  the  latter  would  be 
quite  sufficient  to  raise  the  subject  of  this  claim.  The  question  is, 
in  whom  is  the  legal  title?  Because,  if  I  should  find  that  the 
interest  was  in  the  Spanish  consignee,  I  must  then  condemn,  and 
leave  the  British  party  to  apply  to  the  Crown  for  that  grace  and 
favor  which  it  is  always  ready  to  shew ;  the  property  being  con- 
demnable  to  the  Crown  as  taken  before  hostilities. 

"  The  statement  of  the  claim  sets  forth  that  these  goods  have  not 
been  paid  for  by  the  Spaniard  ; — that  would  go  but  little  way, — that 
alone  would  not  do ;  there  nuist  be  many  cases  in  which  British 
merchants  suffer  from  capture,  by  our  own  cruisers,  of  goods 
shipped  for  foreign  account  before  the  breaking  out  of  hostilities. 
It  goes  on  to  state,  'that,  according  to  the  custom  of  the  trade,  a 
credit  of  six,  nine,  or  twelve  months  is  usually  given,  and  that  it  is 
not  the  custom  to  draw  on  the  consignee  till  the  arrival  of  the 
goods ;  that  the  sea  risk  in  peace  as  well  as  war  is  on  the  consignor ; 
that  he  insures,  and  has  no  remedy  against  the  consignee  for  any 
accident  that  happens  during  the  voyage.'  Under  these  circum- 
stances, in  whom  does  the  property  reside  ?  The  ordinary  state  of 
commerce  is,  that  goods  ordered  and  delivered  to  the  master  are 
considered  as  delivered  to  the  consignee,  whose  agent  the  master  is 
in  this  respect ;  but  that  general  contract  of  the  law  may  be  varied 
by  special  agreement  or  by  a  particular  prevailing  practice,  that  pre- 
supposes an  agreement  amongst  such  a  description  of  merchants. 
In  time  of  profound  peace,  when  there  is  no  prospect  of  approach- 
ing war,  there  would  unquestionably  be  nothing  illegal  in  contract- 
ing, that  the  whole  risk  should  fall  on  the  consignor,  till  the  goods 
came  into  possession  of  the  consignee.  In  time  of  peace  they  may 
divide  their  risk  as  they  please,  and  nobody  has  a  right  to  say  they 
shall  not;  it  would  not  be  at  all  illegal,  that  goods  not  shipped  in 
time  of  war,  or  in  contemplation  of  war,  should  be  at  the  risk  of 
the  shipper.  In  time  of  war  this  cannot  be  permitted,  for  it  would 
at  once  put  an  end  to  all  captures  at  sea ;  the  risk  would  in  all  cases 
be  laid  on  the  consignor,  where  it  suited  the  purpose  of  protection; 
on  every  contemplation  of  a  war,  this  contrivance  would  be  prac- 
ticed in  all  consignments  from  neutral  ports  to  the  enemy's  country, 


CHAP.  IT.]  THE    PACKET   "  DE    BILBOA."  611 

to  the  manifest  defrauding  of  all  rights  of  capture ;  it  is  therefore 
considered  to  be  an  invalid  contract  in  time  of  war ;  or,  to  express  it 
more  accurately,  it  is  a  contract  which,  if  made  in  war,  has  this  ef- 
fect ;  that  the  captor  has  a  right  to  seize  it  and  convert  the  prop- 
erty to  his  own  use ;  for  he  having  all  the  rights  that  belong  to  his 
enemy,  is  authorized  to  have  his  taking  possession  considered  as 
equivalent  to  an  actual  delivery  to  his  enemy ;  and  the  shipper  who 
put  it  on  board  during  a  time  of  war,  must  be  presumed  to  know 
the  rule,  and  to  secure  himself  in  his  agreement  with  the  consignee 
against  the  contingence  of  any  loss  to  himself  that  can  arise  from 
capture.  In  other  words,  he  is  a  mere  insurer  against  sea  risk,  and 
he  has  nothing  to  do  with  the  case  of  capture,  the  loss  of  which  falls 
entirely  on  the  consignee.  If  the  consignee  refuses  payment  and 
throws  it  upon  the  shij)per,  the  shipper  must  be  supposed  to  have 
guarded  his  own  interests  against  that  hazard,  or  he  has  acted  im- 
providently  and  without  caution. 

"  The  present  contract  is  not  of  this  sort ;  it  stands  as  a  lawful 
agreement,  being  made  whilst  there  was  neither  war  nor  prospect  of 
war.  The  goods  are  sent  at  the  risk  of  the  shipper :  if  they  had 
been  lost,  on  whom  w^ould  the  loss  have  fallen  but  on  him  ?  What  surer 
test  of  property  can  there  be  than  this  ?  It  is  the  true  criterion  of 
property  that,  if  you  are  the  person  on  whom  the  loss  will  fall,  you 
are  to  be  considered  as  the  proprietor.  The  bill  of  lading  verj*" 
much  favorvS  this  account.  Tlie  master  binds  himself  to  the 
shipper,  '  to  deliver  for  you  and  in  your  name,'  by  which  it  is  to  be 
understood  that  the  delivery  had  not  been  made  to  the  master  for 
the  consignee,  but  that  he  was  to  make  the  delivery  in  the  name  of 
the  shipper  to  the  consignee,  till  which  time  the  inference  is  that 
they  were  to  remain  the  property  of  the  shipper:  as  to  the  payment 
of  freight,  that  is  not  material,  as  in  the  end  the  purchaser  must 
necessarily  pay  the  carriage.  The  other  consideration — who  bears 
the  loss  ?  much  outweighs  that, — neither  does  the  case  put  shew  the 
contrary.  The  case  put  is — supposing  Spain  and  England  both 
neutral  and  that  these  goods  had  been  taken  by  the  French  and  sold 
to  great  profit,  to  wdiose  advantage  W'ould  it  have  been?  The 
answer  is,  if  the  goods  were  to  continue  the  property  of  the  shipper 
till  deliver}^  it  must  have  enured  to  /its  benefit,  and  not  that  of  the 
consignee.  To  make  the  loss  fall  upon  the  shipper  in  the  case  of 
the  present  shipment  would  be  harsh  in  the  extreme.  He  ships  his 
goods  in  the  ordinary  course  of  traffic,  by  an  agreement  mutually 
understood  between  the  parties,  and  in  no  wise  injurious  to  the 
rights  of  any  third  party ;  an  event  subsequentlj'^  happens  wiiich  he 
could  in  no  degree  provide  against.     If  he  is  to  be  the  sufterer  he  is 


612  EFFECTS    OF   WAR   AS   BETWEEN    ENEMIES.       [PAET  II. 

a  sufferer  without  notice  and  without  the  means  of  securing  him- 
self ;  he  was  not  called  upon  to  know  that  tlie  injustice  of  the  other 
party  would  produce  a  war  before  the  delivery  of  his  goods.  The 
consignee  may  refuse  payment,  referring  to  the  terms  of  the  con- 
tract which  was  made  when  it  was  perfectly  laAvful ;  and  under 
what  circumstances  and  on  what  principles  the  shipper  could  ever 
enforce  payment  against  the  consignee  is  not  easy  to  discover.  The 
goods  have  never  been  delivered  in  Spain ;  they  were  to  have  been 
at  the  risk  of  the  shipper  until  delivery,  and  this  under  a  perfectly 
fair  contract.  I  must  consider  the  property  to  reside  still  in  the 
English  merchant.  It  is  a  case  altogether  different  from  other 
cases  which  have  happened  on  this  subject  flagrante  hello.  I  am  of 
opinion  that,  on  all  just  considerations  of  ownership,  the  legal  prop- 
erty is  in  the  British  merchant ;  that  the  loss  must  have  fallen  on 
the  shipper,  and  the  delivery  was  not  to  have  been  made  til]  the 
last  stage  of  the  business,  till  they  had  actually  arrived  in  Spain  and 
had  been  put  into  the  hands  of  the  consignee  ;  and  therefore  I  shall 
decree  restitution  of  the  goods  to  the  shipper." 

On  prayer  that  the  captor's  expenses  might  be  paid,  it  was 
answered  that  they  had  already  had  the  benefit  of  the  condemnation 
of  the  ship. 

Court. — "  I  think  there  has  been  a  great  service  performed  to  the 
shipper.  If  the  goods  had  not  been  captured  they  would  have  gone 
into  the  possession  of  the  enemy.  The  captor  did  right  in  bringing 
the  question  before  the  court,  and  he  ought  by  no  means  to  be  a 
loser.  I  shall  not  give  salvage,  but  shall  direct  the  expenses  of  the 
captor  to  be  paid  out  of  the  proceeds." 


THE    "ANNA   CATHxVRIXA." 
High  Court  of  Admiralty,  1802. 

(4  C.  Robinson,  107.) 

This  was  a  case  of  a  cargo  of  dry  goods,  etc.,  taken  October,  1801, 
on  a  voyage  from  Hamburgh  to  La  Guayra,  and  described  in  the 
ostensible  papers  and  depositions,  "as  going  to  take  the  chance  of 
the  market."  By  the  discovery  of  a  letter,  it  afterwards  appeared, 
that  these  goods  were  going  under  a  special  agreement  and  contract 
with  the  Spanish  government  of  the  Caracas. 

Judgment.  —  Sir  W.  Scott  :  — 

*  *  *  Taking  the  shippers  to  be  neutral  merchants  "how  does  the 


CHAP.  II.]  THE   "anna    CATHARIXA."  613 

character  of  the  goods  stand  in  this  transaction?  AVas  it  not,  in  the 
first  place,  a  cargo  going  to  become  the  property  of  the  Spanish  govern- 
ment immediately  on  arrival  ?  Was  not  the  Spanish  government  en- 
titled to  possession  ?  It  was  only  on  the  violation  of  the  contract,  on 
the  part  of  the  Spanish  government,  that  these  goods  were  to  take  the 
chance  of  the  market-  The  shippers  considered  themselves  as  bound 
to  deliver  them  to  the  use  of  the  Spanish  government,  under  the 
agreement;  as  entitled  to  the  benefit,  and  subject  to  the  obligations 
of  that  contract.  Were  there  any  intermediate  acts  to  be  done 
after  the  arrival  of  the  vessel?  Or  were  the  acts  such,  as  would  have 
the  effect  of  substantially  distinguishing  this  case  from  the  ^SftZ/y, 
and  other  cases  ?  Is  there  any  act  of  ownership  which  the  claimant 
was  at  liberty  to  exercise,  so  as  to  prevent  the  delivery  ?  If  not  the 
goods  must  be  considered  as  having  substantially  become,  i)i  itinere^ 
the  property  of  the  enemy.  *  *  * 

"  It  is  said  *  *  *  that  these  goods  do  not  exactly  correspond  with 
the  enumeration  in  the  agreement,  that  they  are  not  contract  goods  ; 
and  consequent!}^,  that  without  any  violation  of  public  faith,  the 
acceptance  of  them  was  merely  optional  and  contingent.  But,  I  can- 
not think,  that  it  is  now  open  to  the  parties  to  make  this  averment ; 
when  it  is  evident,  on  the  face  of  their  own  letters,  that  they  had 
relied  on  the  clear  and  absolute  obligation  of  the  Spanish  govern- 
ment to  take  them  as  such.  *  *  * 

"These  distinctions  are,  in  \\\^  judgment,  totally  insufiBcient  to 
take  the  case  out  of  the  authority  of  the  precedents  alluded  to. 
Where  the  goods  are  sent  under  a  contract  by  the  party,  it  surely 
cannot  be  permitted  to  the  claimant  himself  to  aver,  that  the  goods 
so  sent  are  not  contract  goods.  *  *  *  Under  these  circumstances,  I 
am  strongly  disposed  to  hold,  that  this  cargo  was  going  in  time  of 
war  to  the  port  of  a  belligerent,  there  to  become  the  property  of  the 
belligerent,  immediately  on  arrival,  and  that  the  legal  consequence 
of  condemnation  would  on  that  ground  alone  attach  upon  it."  ^ 

1  Only  so  much  of  this  case  is  given  as  refers  to  the  sliipment  of  goods  under  con- 
tract to  a  belligerent  port.  —  Ed. 


614  EFFECTS    OP  WAR   AS  BETWEEN   EXEJVIIES.       [PAET  II. 

THE   «SAN  JOSE  INDIANO." 
U.   S.  Circuit  Court  for  Massachusetts,  1814. 

(2  G'«//i'so»,  2G8 ) 

Stobv,  J.  :  '  — 

"  The  next  is  the  claim  of  Mr.  J.  Lizaur,  of ,  in  Brazil. 

"The  shipment  was  made  by  Messrs.  Dyson  Brothers  &  Co.,  and 
by  the  bill  of  lading  the  goods  are  consigned  to  Messrs.  Dyson 
Brothers  and  Unney,  Rio  de  Janeiro. 

"The  accompanying  invoices  express  the  shipment  to  be  made  by 
order  ai^d  for  account  of  Mr.  J.  Lizaur,  and  contain  charges  of 
freight,  commission  and  insurance,  and  an  acknowledgment  of  giving 
credit  for  three  and  six  months.  In  a  letter  of  the  -Itli  of  May,  1814, 
addressed  by  the  shippers  to  the  consignees,  they  say,  'for  Mr. 
Lizaur  we  open  an  account  in  our  books  here,  and  debit  him  1764/. 
lis.  7 f?.  for  16  cases  of  cambrics,  etc.,  at  three  months'  credit;  we 
cannot  yet  ascertain  proceeds  of  his  hides,  etc.,  but  find  his  order 
will  far  exceed  amount  of  these  shipments,  therefore  cansir/n  the  %chole 
to  you,  so  as  you  may  come  to  a  proper  tinder  standing.  We  have 
.  charged  our  usual  commission  of  two  and  a  half  per  cent,  in  the 
invoices,  but  should  you  have  made  any  stipulation  to  the  contrary, 
he  can  again  bring  same  to  our  debit.  Invoices,  bills  of  lading  and 
patterns  of  what  goods  are  requisite  we  forward  as  usual  in  a  small 
box  to  your  address.' 

"  The  single  question  presented  in  this  claim  is,  in  whom  the  prop- 
erty vested  during  its  transit;  if  in  Mr.  Lizaur,  then  it  is  to  be  re- 
stored ;  if  in  the  shippers,  then  it  is  to  be  condemned.  It  is  con- 
tended on  behalf  of  the  claimant,  that  the  goods,  having  been  pur- 
chased by  order  of  Mr.  Lizaur,  the  property  vested  in  him  immedi- 
ately by  the  purchase,  and  the  contract  being  executed  by  the  sale, 
no  delivery  was  necessary  to  perfect  the  legal  title ;  that  nothing 
was  reserved  to  the  shippers,  but  a  mere  right  of  stoppage  in  tran- 
situ, and  that  if  they  had  been  burnt  before  the  shipment,  or  lost 
during  the  voyage,  the  loss  must  have  fallen  on  Mr.  Lizaur. 

"  As  to  the  doctrine  of  stoppage  in  transitu,  I  do  not  conceive  it 
can  apply  to  this  case.  That  riglit  exists  in  the  single  case  of  insolv- 
ency, and  presupposes,  not  only  that  tlie  property  in  the  goods  has 
passed  to  the  consignee,  but  that  the  possession  is  in  a  third  person 

1  Statement  of  case  omitted  and  only  so  much  of  the  opinion  is  given  as  rektes  to 
the  question  of  stoppage  in  lyansitu.  —  Ed. 


CHAP.  II.]  THE   "  SAN  JOSE   INDTANO."  615 

ill  their  transit  to  the  consignee.  It  cannot,  therefore,  touch  a  case, 
where  tlie  actual  or  constructive  possession  still  remains  hi  the 
shipper  or  his  exclusive  agents. 

"  I  agree  also  to  the  position,  that  in  general  the  rules  of  the  prize 
court,  as  to  the  vesting  of  property,  are  the  same  as  those  of  the 
common  law,  by  which  the  thing  sold,  after  the  completion  of  the 
contract,  is  properly  at  the  risk  of  the  purchaser.  But  the  question 
still  recurs,  when  is  the  contract  executed  ?  It  is  certainly  com- 
petent for  an  agent  abroad,  who  purchases  in  pursuance  of  orders,  to 
vest  the  property,  immediately  on  the  purchase,  in  his  principal.  This 
is  the  case,  when  he  purchases  on  the  credit  of  his  principal,  or 
makes  an  absolute  appropriation  and  designation  of  the  property  for 
his  principal.  But  where  a  merchant  abi-oad,  in  pursuance  of  orders, 
sells  either  his  own  goods,  or  purchases  goods  on  his  own  credit 
(and  thereby  in  reality  becomes  the  owner),  no  property  in  the 
goods  vests  in  his  correspondent,  until  he  has  done  some  notorious 
act  to  divest  himself  of  his  title,  or  has  parted  with  the  possession 
by  an  actual  and  unconditional  delivery  for  the  use  of  such  corre- 
spondent. Until  that  time  he  has  in  legal  contemplation  the  exclu- 
sive property,  as  well  as  possession ;  and  it  is  not  a  wrongful  act  for 
him  to  convert  them  to  any  use,  which  he  pleases.  He  is  at  liberty 
to  contract  upon  any  new  engagements,  or  substitute  any  new  con- 
ditions in  relation  to  the  shipment.  And  this,  I  understand,  not 
only  as  the  general  law,  but  as  the  prize  law  pronounced  by  that 
high  tribunal,  whose  decisions  I  am  bound  to  obey. 

"  111  the  V€?ius,  1814,  on  the  claim  of  Magee  and  Jones,  in  deliver- 
ing the  opinion  of  the  court,  Mr.  Justice  Washington  observed  :  '  to 
effect  a  change  of  property,  as  between  seller  and  buyer,  it  is  essen- 
tial, that  there  should  be  a  contract  of  sale  agreed  to  by  both  par- 
ties, and  if  the  thing  agreed  to  be  purchased  is  to  be  sent  by  the 
vendor  to  the  vendee  it  is  necessary  to  the  perfection  of  the  contract, 
that  it  should  be  delivered  to  the  purchaser  or  to  his  agent,  which 
the  master  (of  a  ship)  to  many  purposes  is  considered  to  be.^ 

"  And  adverting  to  the  facts  of  that  claim  he  further  says  :  '  The 
delivery  of  the  goods  to  the  master  of  the  vessel  Avas  not  for  the  use 
of  Magee  and  Jones,  any  more  than  it  was  for  the  shipper  solely,  and 
consequently  it  amounted  to  nothing,  so  as  to  divest  the  property 
out  of  the  shipper,  until  ]Magee  should  elect  to  take  them  on  joint 
account,  or  to  act  as  the  agent  of  Jones.' "^ 

1  Sf-mble,  that  by  the  French  rule  tlie  neutr;il  shipper  may  assume  the  risk  of  goods 
in  transit  to  enemy  country.  (The  Trois  Frins,  Comite  lic  Salut  Public,  An  III., 
1  t.  et  D.  357.)  —  Ed. 


616  EFFECTS    OF    WAR   AS   BETWEEN   ENEMIES.        [PAET  II. 


Section  34. — Traxsfeks  in  Transitu. 


THE   -'A'KOW  MAPvGAEETHA." 
HiGu  Court  of  Admiralty,  1799. 

(1  C.  Robinson,  330.) 

Judgment, — Sir  W.  Scott  : — 

"  This  is. a  claim  of  31r.  Pli.  Berkeym3'er,  of  Hamburgh,  for  some 
parcels  of  wine  which  were  seized  on  board  three  Dutch  vessels  de- 
tained by  order  of  government  in  1795.  The  ships  have  been  since 
condemned ;  the  cargoes  Avere  described  in  the  ship's  papers,  as  far 
as  the  property  was  expressed,  as  belonging  to  Spanish  merchants. 
It  is  material,  in  this  case,  to  consider  the  relative  situation  of  the 
countries  from  which,  and  to  which  these  cargoes  were  going. 
Spain  and  Holland  were  then  in  alliance  with  this  country  and  at 
war  with  France ;  it  might,  therefore,  be  an  inducement  with  a 
Spanish  merchant  to  conceal  the  property  of  his  goods,  although  it 
does  not  appear  to  have  existed  in  any  great  degree,  as  the  goods 
were  coming  under  an  English  convoy,  and  as  they  were  shipped  '  as 
Spanish  wines,'  and  destined,  avowedly,  to  Holland ;  there  was, 
therefore,  nothing  in  this  part  of  the  case  to  mislead  our  cruisers. 
Mr.  Berkeymyer  is  allowed  to  be  an  inhabitant  of  Hamburgh, 
although  he  had  made  a  journey,  a  short  time  previous  to  the  ship- 
ment of  these  cargoes,  to  Spain  (where  he  had  resided  some  years 
before),  to  settle  his  affairs,  and  bring  off  the  property  which  he  had 
left  behind  him.  He  had  cjuitted  Spain,  however,  previous  to  the 
breaking  out  of  Spanish  hostilities,  and  had  resumed  his  original 
character  of  a  merchant  of  Hamburgh.  The  account  which  he  gives 
of  his  transactions  in  Spain,  as  far  as  they  regard  this  case,  is,  that 
he  entered  into  a  contract  with  two  Spanish  houses  for  some  wines, 
which  were  at  the  time  actually  shipped,  and  in  itinere  towards  Hol- 
land. The  first  objection  that  has  been  taken  is,  that  such  a  transfer 
is  invalid,  and  cannot  be  set  up  in  a  Prize  Court,  where  the  property 
is  always  considered  to  remain  in  the  same  character  in  which  it  was 
shipped  till  the  delivery.  If  that  could  be  mamtained  there  would 
be  an  end  of  the  question,  because  it  has  been  admitted  that  these 
wines  were  shipped  as  Spanish  property,  and  that  Spanish  property 
is  now  become  liable  to  condenmation.  But  I  apprehend  it  is  a  posi- 
tion which  cannot  be  maintained  in  that  extent.     In  the  ordinary 


CFTAP.  II.]  THE   "  VROW    MARGARETHA."  617 

course  of  things  in  time  of  peace — for  it  is  not  denied  that  such  a 
contract  may  be  made,  and  effectually  made  (according  to  the  usage 
of  merchants,)  such  a  transfer  in  transitu  might  certainly  be  made. 
It  has  even  been  contended  that  a  mere  delivering  of  the  bill  of 
lading  is  a  transfer  of  the  property.  But  it  might  be  more  correctly 
expressed,  perhaps,  if  said  that  it  transfers  only  the  right  of  delivery ; 
but  that  a  transfer  of  the  bill  of  lading,  with  a  contract  of  sale  ac- 
companying it,  may  transfer  the  property  in  the  ordinary  course  of 
things,  so  as  effectually  to  bind  the  parties,  and  all  others,  cannot 
well  be  doubted.  Wben  war  intervenes,  another  rule  is  set  up  by 
Courts  of  Admiralty,  which  interferes  with  the  ordinary  practice. 
In  a  state  of  war,  existing  or  imminent,  it  is  held  that  the  property 
shall  be  deemed  to  continue  as  it  was  at  the  time  of  shipment  till 
the  actual  delivery ;  this  arises  out  of  the  state  of  war,  which  gives 
a  belligerent  a  right  to  stop  the  goods  of  his  enemy.  If  such  a  rule 
did  not  exist  all  goods  shipped  in  the  enemy's  country  would  be 
protected  by  transfers  which  it  would  be  impossible  to  detect.  It  is 
on  that  principle  held,  I  believe,  as  a  general  rule,  that  property  can- 
not be  converted  in  transitu  ;  and  in  that  sense  I  recognize  it  as  the 
rule  of  this  Court.  But  this  arises,  as  I  have  said,  out  of  a  state  of 
war,  which  creates  new  rights  in  other  parties,  and  cannot  be  applied 
to  transactions  originating,  like  this,  in  a  time  of  peace.  The  trans- 
fer, therefore,  must  be  considered  as  not  invalid  in  point  of  law,  at 
the  time  of  the  contract ;  and  being  made  before  the  war  it  must  be 
judged  according  to  the  ordinary  rules  of  commerce. 

"  It  has  been  farther  objected  to  the  validity  of  this  contract,  that 
a  part  of  the  wines  did  actually  reach  Hamburgh,  where  they 
were  sold,  and  the  money  was  detained  by  the  consignees  in  pay- 
ment of  the  advances  which  they  had  made.  It  is  said  that  this 
annuls  the  contract — to  the  extent  of  that  part  it  may  do  so,  and  the 
deficiency  must  be  made  up  to  the  purchaser  by  other  means  ;  but  it 
appears  that  it  has  been  actually  supplied  by  bills  of  exchange,  and 
an  assignment  of  other  wines  sent  to  Petersburgh.  It  is  not  for  me 
to  set  aside  the  whole  contract  on  that  partial  ground,  or  to  construe 
the  defect  in  the  execution  of  the  contract  so  rigorously  as  to  extend 
it  to  those  wines  which  never  went  to  Holland,  and  which  never  be- 
came de  facto  subject  to  be  detained  by  the  consignees.  They  are 
free  for  the  contract  to  act  upon ;  and  if  the  parties  are  desirous  of 
adhering  to  their  contract  in  its  whole  extent,  it  does  not  become 
other  persons  to  obstruct  them. 

"It  comes  then  to  a  question  of  fact,  whether  it  was  a  do?ia  fide 
transfer  or  not  ?  I  think  the  time  is  a  strong  circumstance  to  prove 
the  fairness  of  the  transaction.     Had   it   happened  three  months 


"618  EFFECTS   OF   WAR   AS   BETWEEN  ENEIVIIES.       [PAET  II. 

later  there  might  have  been  reason  to  alarm  the  prudence  of  Spanish 
merchants,  and  induce  them  to  resort  to  the  expedient  of  covering 
their  property.  But  at  the  time  of  the  contract  there  seems  to  have 
been  no  reason  for  apprehension,  and  therefore  there  is  notliing  to 
raise  any  suspicion  on  that  point. 

"  The  instruments  of  sale  have  been  produced,  and  no  observation 
has  been  made  upon  them.  The  correspondence  has  been  exliibited, 
and  there  is  certainly  some  confusion  in  the  dates.  Explanations 
have  been  given,  which  are  probable  enough ;  still  they  are  but  con- 
jectural. If  the  counsel  for  the  captors  require  it  I  will  order  the 
original  documents  in  proof  of  these  explanations  to  be  produced ; 
although  I  must  say,  at  the  same  time,  that  the  impression  upon  my 
mind  is,  that  it  is  a  fair  transaction. 

"  The  originals  decreed  to  be  produced. 

"  January  15th,  1800.  The  captors  being  satisfied  with  the  farther 
proof  produced,  Mr.  Berkeymyer's  claims  were  restored  without 
opposition." 


THE    '-JAX  FREDERICK." 
High  Court  of  Admikaltv,  1804. 

(5  C.  Robinson,  128.) 

Judgment, — Sir  W.  Scott  : —  ^ 

"This  question  arises  on  parts  of  several  cargoes  put  on  board 
Dutch  ships  in  January  and  February,  1803,  and  brought  in  under 
the  general  embargo  on  Dutch  property,  previous  to  hostilities,  in 
the  month  of  May.  The  property  is  documented  for  the  account  and 
risk  of  certain  estates  in  Surinam  ;  and  certainly,  if  it  was  not  al- 
lowable under  any  considerations  to  aver  against  the  evidence  of  the 
ship's  documents,  it  must  be  subject  to  condemnation  as  Dutch 
property.  But  the  Court  has  opened  a  door  to  such  claims,  in  oppo- 
sition to  the  averment  of  the  ship's  papers ;  and  it  has  done  this,  on 
a  consideration  of  the  fair  course  of  mei'cantile  speculation  in  time  of 
peace.  It  has  even  allowed  a  change  of  property  in  transitu^  by  the 
transfer  of  the  bills  of  lading,  where  it  had  been  done  without  any 
view  of  accommodation  to  relieve  the  seller  from  the  pressure  or 
prospect  of  war.  In  the  present  instance,  there  is  no  proof  of  any 
transfer  of  the  bills  of  lading,  except  as  to  one  or  two  parcels  of 
goods  belonging  to  the  widow  Noble,  which  do,  indeed,  bear  an  en- 

1  Facts  are  omitted  and  only  extracts  are  given  from  the  judgment.  —  Ed. 


CHAP.  IL]  the    "  JAN   FREDERICK."  619 

dorsement,  but  whether  they  were  so  endorsed  before  or  after  the 
war,  it  does  not  appear.  This  ak)ne  would  be  sufficient  to  defeat  the 
claim;  since,  till  the  bill  of  lading  was  so  endorsed,  the  contract 
would,  I  apprehend,  be  a  thing  remaining  in  covenant  only :  it  might 
subject  the  party  to  an  action  danini  duti,  but  it  would  not  amount 
to  a  transfer,  being  only  an  engagement  that  the  goods  should  be 
transferred  when  they  arrived.  That  a  transfer  may  take  place  in 
transitu,  has,  I  have  already  observed,  been  decided  in  two  or  three 
cases,  where  there  had  been  no  actual  war,  nor  any  prospect  of  war, 
mixing  itself  with  the  transaction  of  the  parties.  But  in  time  of 
war  this  is  prohibited  as  a  vicious  contract,  being  a  fraud  on  bellig- 
erent rights,  not  only  in  the  particular  transaction,  but  in  the  great 
facility  which  it  would  necessarily  introduce,  of  evading  those  rights 
beyond  the  possibility  of  detection.  It  is  a  road  that,  in  time  of  war, 
nnist  be  shut  up ;  for  although  honest  men  might  be  induced  to 
travel  it  with  very  innocent  intentions,  the  far  greater  proportion  of 
those  who  passed  would  use  it  only  for  sinister  purposes,  and  with 
views  of  fraud  on  the  rights  of  the  belligerent. 

"This,  however,  is  not  a  contract  made  in  time  of  war;  and  there- 
fore an  important  question  is  raised,  whether  the  contemplation  of 
^oar  would  have  the  same  effect  in  vitiating  these  contracts  as  act- 
ual war '?  It  cannot  be  said  that  all  engagements  in  the  proximity 
of  war,  into  which  the  speculation  of  war  might  enter,  as  for  in- 
stance, with  regard  to  the  price,  Avould  therefore  be  invalid.  The 
contemplation  of  war  is  undoubtedly  to  be  taken  in  a  more  restricted 
sense.  But  if  the  contemplation  of  war  leads  immediately  to  the  j 
transfer,  and  becomes  the  foundation  of  a  contract,  that  would  not ;, 
otherwise  be  entered  into  on  the  part  of  the  seller  ;  and  this  is  known? 
to  be  so  done,  in  the  understanding  of  the  purchaser,  though  on  his 
part  there  may  be  other  concurrent  motives,  as  in  the  case  of  the 
Rendshorg  (4  C.  Rob.,  121),  such  a  contract  cannot  be  held  good,  on  the 
same  principle  that  applies  to  invalidate  a  transfer  in  transitu  in 
time  of  actual  war.  The  motive  may  indeed  be  difficult  to  be  proved 
— but  that  will  be  the  difficulty  of  particular  cases.  Supposing  the 
fact  to  be  established,  that  it  is  a  sale  under  an  admitted  necessity, 
arising  from  a  certain  expectation  of  war ;  that  it  is  a  sale  of  goods 
not  in  the  possession  of  the  seller,  and  in  a  state  where  they  could 
not,  during  war,  be  legally  transferred,  on  account  of  the  fraud  on 
belligerent  rights.  I  cannot  but  think  that  the  same  fraud  is  commit- 
ted against  the  belligerent,  not,  indeed  as  an  actual  belligerent,  but  as 
one  who  was,  in  the  clear  expectation  of  both  the  contracting  par- 
ties, likely  to  become  a  belligerent  before  the  arrival  of  the  property, 
which  is  made  the  subject  of  their  agreement.     The  nature  ot  both 


620  EFFECTS   OF   WAR   AS   BETWEEN   ENEMIES.       [PART  II. 

contracts  is  identically  the  same,  being  equally  to  protect  the  prop- 
erty from  capture  of  war — not  indeed  in  either  case  from  capture 
at  the  present  moment  A\hen  the  contract  is  made,  but  from  the 
danger  of  capture,  when  it  was  likely  to  occur.  The  object  is  tlio 
same  in  both  instances,  to  afford  a  guarantee  against  the  same  crisis. 
In  other  Avords,  both  are  done  for  the  purpose  of  eluding  a  belliger- 
ent right,*  either  present  or  expected.  Both  contracts  are  framed 
with  the  same  animo  fraudandi,  and  are,  in  my  opinion,  justly 
subject  to  the  same  rule.    *    *     * 

"  I  am  of  opinion,  therefore,  that  if  the  papers  and  letters  which 
have  been  produced,  do  suflBciently  establish  the  purpose  attributed 
to  the  contract,  if  it  is  proved  to  have  been  built  innnediately  and 
fundamentally  on  the  contemplation  of  war,  on  the  part  of  the  seller, 
and  that  it  would  not  otherwise  have  fallen  into  the  hands  of  the 
purchaser,  it  is  an  illegal  contract,  and  must  be  held  on  every 
ground,  on  which  similar  contracts  in  time  of  war  have  been  held  to 
be  invalid.    *    *    * 

"  But  taking  it  to  be  a  hoi^a  fide  contract,  yet  being  formed  in 
transitu,  for  the  purpose  of  withdrawing  the  property  from  capture, 
it  does  intimately  partake  of  the  nature  of  those  contracts,  which  have, 
in  the  repeated  decisions  of  this,  and  of  the  Supreme  Court,  been 
pronounced  null  and  invalid;  and  I  pronounce  this  property  subject 
to  condemnation." 


THE   SHIP   '' A^^   GREEN." 
U.  S.  Circuit  Court  for  Massachusetts,  1812. 

(1  Gall!son,27i.) 

Story,  J.  :  ^  — 

"  It  has  been  further  argued,  that  this  capture,  being  made  while 
the  property  was  in  transitu,  and  war  intervening,  it  is  to  be  consid- 
ered as  enemy's  property,  because  it  would  have  become  such  upon 
arrival  at  the  port  of  destination :  and  at  all  events  it  would  have  been 
liable  to  seizure  and  confiscation.  As  to  the  fact  that  the  property 
was  taken  in  transitu,  I  do  not  perceive  how  of  Itself  it  can  affect 
the  rights  of  the  parties  either  way ;  nor  do  I  perceive  how  this 
property  was  to  have  become  enemy's  property  on  its  arrival.  The 
case  proved  is,  that  it  was  American  property  consigned  for  sale 

1  Statement  of  the  case  is  omitted  and  only  so  mucii  of  the  opinion  is  given  as 
relates  to  transfer  iti  tratisilu.  —  Ed. 


CHAP,  ir.]  THE    "  BENITO    ESTENGER."  621 

onh%  and  not  a  consignment  -uiiere  the  property  AA-as,  at  the  time  of 
shipment  or  of  arrival,  to  belong  to  the  consignee.  The  cases  are,  as  I 
thuik,  settled  upon  just  principles,  that  decide  that  in  time  of  war, 
property  shall  not  be  permitted  to  change  character  in  its  transit ; 
nor  shall  property  consigned,  to  become  the  property  of  the  enemy 
on  arrival,  be  protected  by  the  neutrality  of  the  shipper.  Such  con- 
tracts, however  valid  in  time  of  peace,  are  considered,  if  made  in  war 
or  in  contemplation  of  war,  as  infringements  of  belligerent  rights,  and 
calculated  to  introduce  the  grossest  frauds.  In  fact,  if  they  could 
prevail,  not  a  single  bale  of  enemy's  goods  would  ever  be  found  upon 
the  ocean."  ( Vrow  3Iargaretha,  1  C.  Rob.,  336 ;  Carl  Walter,  4  C. 
Rob.,  207;  Jan  Frederick,  5  C.  Rob.,  128;  The  Constantia,  6  C. 
Rob.,  321 ;  The  Anna  Catharina,  4  C.  Rob.,  107 ;  Packet  Be  Bilhoa, 
2  C.  Rob.,  133.)i 


THE   "BEXITO   ESTENGER." 
Supreme  Court  of  the  United  States,   1899 

(176  United  States,  508  ) 

Mr.  Chief  Justice  Fuller,  after  stating  the  case,  delivered  the 
opinion  of  the  court. 

If  the  alleged  transfer  was  colorable  merely,  and  Messa  was  the 
owner  of  the  vessel  at  the  time  of  capture,  did  the  District  Court  err 
in  condemning  the  Benito  Estenger  as  lawful  prize  as  enemy 
property  ? 

"Enemy  property''  is  a  technical  phrase  peculiar  to  prize  courts,  and 
depends  upon  principles  of  public  policy  as  distinguished  from  the 
common  law.  The  general  rule  is  that  in  war  the  citizens  or  subjects 
of  the  belligerents  are  enemies  to  each  other  without  regard  to  individ- 
ual sentiments  or  dispositions,  and  that  political  status  determines  the 
question  of  enemy  ownership.  And  by  the  law  of  prize,  property  en- 
gaged in  any  illegal  intercourse  with  the  enemy  is  deemed  enemy 
property,   whether  belonging   to  an  ally  or  a  citizen,  as   the    illegal 

1  In  the  case  of  the  ship  Francis  and  Cargo,  1813,  1  Gallison,  445,  approved  by  the 
Supreme  Court,  8  Cranch,  354  (1813),  a  sliipment  made  by  an  enemy  shipper  to  liis 
correspondent  in  America,  to  belong  to  the  latter  at  his  election,  in  twenty-four  ho'jrs 
after  tlie  arrival  thereof,  was  lield  liable  to  condemnation  as  hostile  property. 

In  war,  property  cannot  change  its  cliaracter  in  transitu ;  and  in  this  case,  an  elec- 
tion during  tlie  transit  would  not  merge  the  hostile  cliaracter  of  tlie  property. 

On  the  subject  of  the  sale  in  transitu  by  a  belligerent  to  a  neutral,  see  an  article  by 
T.  S.  M.  Browne,  in  the  Law  Magazine  and  Review,  1870,  Vol.  xxix.  p.  233.  — Ed. 


622  EFFECTS   OF   WAR   AS   BETWEEN   ENEMIES.      [PAKT  n. 

traffic  stamps  it  with  the  hostile  character  and  attaches  to  it  all  the 
penal  consequences.  Prize  Cases,  2  Black,  600,  674;  Tlte  Sally, 
8  Cranch,  382,  384;  Jecker  x.  Montfjomer}j,  18  How.  110;  The  Peter- 
hoff,  0  Wall.  28;   The  Flying  Scud,  6  Wall.  263. 

Messa  was  a  Spanish  subject,  residing  at  Santiago,  and  for  years 
engaged  in  business  there.  His  vessel  had  a  Spanish  crew  and  Span- 
ish officers,  and  he  testified  that  he  was  on  board  of  her  as  supercargo. 
She  had  the  Spanish  flag  in  her  lockers,  though  she  was  flying  tlie 
British  flag  at  the  moment,  under  a  transfer,  which,  as  presently  to  be 
seen,  was  colorable  and  invalid.  There  was  evidence  tending  to  show 
that  Messa  sympathized  with  the  Cuban  insurgents,  but  no  proof 
that  he  was  himself  a  Cuban  rebel  or  that  he  had  renounced  his 
allegiance  to  Spain.  The  vessel  carried  to  Manzanillo  on  this  voy- 
age a  cargo  of  provisions,  consisting  principally  of  eleven  hundred 
barrels  of  flour. 

Manzanillo  was  a  city  of  several  thousand  inhabitants  and  the  first 
important  place  on  the  south  Cuban  coast  between  Santiago  and 
Cienfuegos,  lying  inside  the  bay  formed  by  the  promontory  which 
Cape  Cruz  terminates,  and  about  sixty  miles  northeast  of  the  cape. 
Cape  Cruz  is  about  due  north  from  Montegro  Bay  on  the  northwestern 
shore  of  Jamaica,  and  about  seventy-five  miles  distant,  while  Kings- 
ton is  on  the  southeastern  coast  of  Jamaica.  The  record  lacks  evi- 
dence of  the  condition  of  affairs  there  at  that  time,  but  official  reports 
leave  no  doubt  that  it  was  defended  by  several  vessels  of  war  and  by 
shore  batteries,  and  was  occupied  by  some  thousands  of  Spanish  sol- 
diers. On  the  6th  of  April,  1898,  the  Secretary  of  the  Navy  had 
instructed  Admiral  Sampson,  among  other  things,  tliat  the  depart- 
ment desired,  "  That  in  case  of  war,  you  will  maintain  a  strict  block- 
ade of  Cuba,  particularly  the  ports  of  Havana,  Matanzas,  and,  if 
possible,  Santiago  de  Cuba,  Manzanillo  and  Cienfuegos."  Manzanillo 
was  the  terminus  of  a  cable  which  connected  with  Santa  Cruz,  Trini- 
dad, Cienfuegos  and  Havana,  and  was  subsequently'  cut  by  the  forces 
of  the  United  States,  in  order  to  check  the  inland  traffic  witli  ]\ran- 
zanillo  and  to  prevent  the  calling  of  re-enforcements  to  resist  the  cap- 
ture of  that  place.  And  it  appeared  that  Admiral  Sampson  had  been 
for  some  weeks  endeavoring  to  stop  blockade  running  on  the  south 
coast  of  Cuba,  and  that  a  large  vessel  with  a  heav}'  battery  was 
stationed  at  Cape  Cruz.  Manzanillo  was  not  declared  blockaded,  how- 
ever, until  the  proclamation  of  June  27,  1898 ;  but  the  consul  of  the 
United  States  at  Kingston  had  warned  Messa  and  Beattie  that  a 
blockade  in  fact  existed.  Tlie  claimant  testified  that  the  vessel  was 
chartered  by  Flouriache,  a  Cuban  merchant,  and  tliat  the  cargo  was 
consigned  to  Bauriedel  and  Company,  at  Manzanillo.     The  deposition 


CHAP.  II.]  THE    "  BENITO   ESTENGER."  623 

of  neither  of  these  was  taken.  According  to  the  explicit  testimony 
of  the  consul,  he  was  informed  by  both  tlie  claimant  and  his  brother 
that  the  flour  was  transferred  by  Bauriedel  and  Company,  through  a 
communicating  way  from  their  warehouse  to  the  Spanish  Government 
warehouse,  immediately  upon  its  delivery  ;  and  no  evidence  to  contra- 
dict this  was  introduced. 

The  instructions  of  the  Navy  Department  to  "blockading  vessels 
and  cruisers,-'  in  the  late  war,  included,  among  articles  conditionally 
contraband,  "provisions,  when  destined  for  an  enemy's  ship  or  ships, 
or  for  a  place  that  is  besieged." 

In  The  Commercen,  1  Wlieat.  382,  388,  Mr.  Justice  Story  said: 
"  By  the  modern  law  of  nations  provisions  are  not,  in  general,  deemed 
contraband;  but  they  may  become  so,  although  the  property  of  a 
neutral,  on  account  of  the  particular  situation  of  the  war,  or  on  account 
of  their  destination.  *  *  *  If  destined  for  the  ordinary  use  of  life 
in  the  enemy's  country,  they  are  not,  in  general,  contraband  ;  but  it  is 
otherwise  if  destined  for  military  use.  Hence,  if  destined  for  the 
army  or  navy  of  the  enemy,  or  for  his  ports  of  naval  or  military 
equipment,  they  are  deemed  contraband." 

In  TheJonge  Margaretha,  1  C.  Rob.  189,  193,  Sir  William  Scott  dis- 
cussed  this  question,  and,  after  referring  to  many  instances,  concluded: 
"  And  I  take  the  modern  established  rule  to  be  this,  that  generally 
they  are  not  contraband,  but  may  become  so  under  circumstances  aris- 
ing out  of  the  particular  situation  of  the  war,  or  the  condition  of  the 
parties  engaged  in  it." 

But,  while  alluding  to  this  subject  by  way  of  illustration,  we  do  not 
feel  called  on  to  consider  under  what  particular  circumstances,  gener- 
ally speaking,  provisions  may  be  held  contraband  of  war.  It  is  enough 
that,  in  dealing  with  a  vessel  adjudicated  to  have  been  an  enemy 
vessel,  the  fact  of  trade  with  the  enemy,  especially  in  supplies  neces- 
sary for  the  enemy's  forces,  is  of  well-nigh  decisive  importance. 

In  reply  it  is  suggested  that  this  cargo  was  intended  for  the  Cuban 
insurgents,  and  a  quotation  is  made  from  a  letter  of  the  consul  to  the 
effect  that  he  had  been  "  told  privately  by  the  president  of  the  local 
junta,  who  has  performed  valuable  services  for  me,  that  the  proceeds 
of  this  cargo  are  to  be  forwarded  to  the  Cuban  Government  and  troops 
through  the  Cuban  agent  at  Manzanillo."  The  suggestion  derives  no 
support  from  the  record,  and  the  facts  remain  that  the  provisions  were 
delivered  to  the  Spanish  Government,  and  that  the  trade  to  this  Span- 
ish stronghold  constituted,  under  the  laws  of  war,  illicit  intercourse 
with  the  enemy. 

This  brings  us  to  consider  the  contention  that  Messa  had  rendered 
important  services  to  the  United  States;  that  he  was  the  friend  and 


624  EFFECTS    OF    AVAR    AS    BETWEEN    ENEMIES.       [PAHT  IT. 

not  the  enemy  of  this  government,  and  that  there  was  an  agreement 
between  him  and  the  United  States  consul  which  operated  to  protect 
the  vessel  from  capture.  But  ^Messa's  status  was  that  of  an  enemy, 
as  already  stated,  and  this  must  be  held  to  be  so  notwithstanding 
individual  acts  of  friendship,  certainly  since  there  was  no  open  adher- 
ence to  the  Cuban  cause,  and  allegiance  could  have  been  shifted  with 
the  accidents  of  war.  The  legal  conclusion  was  not  affected  by  the 
fact  that  Messa  had,  in  cultivating  friendly  relations  with  the  consul, 
given  the  latter  au  old  government  plan  of  the  province  of  Santiago 
and  an  especially  prepared  chart  of  the  harbor.  Thus  displaying  liis 
amicable  inclinations,  he  endeavored  to  obtain  from  the  consul  a  letter 
of  protection  for  the  voyage  he  was  about  to  undertake,  but  this  the 
consul  declined  to  furnish,  and  informed  him  at  the  same  time  that 
Manzanillo  was  blockaded,  and  that  the  contemplated  venture  would  be 
at  his  own  risk. 

Nevertheless,  the  consul  agreed  to  write  the  admiral,  and  did  write 
him,  June  23,  that  Messa  offered  to  give  certain  information  that  might 
be  valuable,  and  that  he  proposed  to  be  off  Cape  Cruz  on  June  30, 
when  he  could  be  picked  up  there  and  taken  to  the  admiral  if  he 
desired ;  but  the  consul  said  :  •'  You  quite  understand  that  in  dealing 
with  those  people,  one  is  always  more  or  less  liable  to  imposition.  I 
therefore  make  no  recommendation  of  Messa  to  you."'  There  was  noth- 
ing to  show  that  the  voyage  was  undertaken  on  the  strength  of  this 
letter  or  that  it  in  any  way  contributed  to  the  capture,  nor  that  the 
admiral  intended  to  avail  himself  of  the  suggestion  in  regard  to 
Messa. 

The  claimant  asserted  and  the  consul  denied  that  protection  to  the 
voyage  was  extended  by  the  latter.  But  we  do  not  go  at  length  into 
this  matter  because  we  think  that  no  engagement  with  the  United 
States  nor  any  particular  service  to  the  United  States  was  made  out 
in  that  connection,  and  so  far  as  appears  the  vessel  was  captured  in 
the  ordinary  course  of  cruising  duty  at  a  time  and  under  circum- 
stances when  her  liability  was  not  to  be  denied.  IMoreover,  a  United 
States  consul  has  no  authority  by  virtue  of  his  official  station  to 
grant  any  license  or  permit  the  exemption  of  a  vessel  of  an  enemy 
from  capture  and  confiscation.  This  was  so  held  by  Judge  McCaleb 
in  Rogers  v.  The  Amado,  Xewberry,  400,  in  which  he  quotes  the 
language  of  Sir  William  Scott  in  The  Hope,  1  Dodson,  226,  220 : 
"  To  exempt  the  property  of  enemies  from  tlie  effect  of  hostilities, 
is  a  very  high  act  of  sovereign  authority ;  if  at  any  time  delegated 
to  persons  in  a  subordinate  situation,  it  must  be  exercised  either  by 
those  who  have  a  special  commission  granted  to  them  for  the  par- 
ticular business,  and  who,  in  legal  language,  are  termed  mandatories 


CHAP.  II.]  THE   "  BENITO    ESTENGER."  625 

or  by  persons  in  whom  such  a  power  is  vested  in  virtue  of  any  official 
situation  to  which  it  may  be  considered  incidental.  It  is  quite  clear 
that  no  consul  in  any  country,  particularly  in  an  enemy's  country,  is 
vested  with  any  such  power  in  virtue  of  his  station.  '  Ei  rel  non 
prceponitur  ; '  and  therefore  his  acts  relating  to  it  are  not  binding." 

In  The  Joseph,  8  Cranch,  451,  the  vessel  was  condemned  for  trad- 
ing with  the  enera}',  and  it  was  held  that  she  was  not  excused  by  the 
necessity  of  obtaining  funds  to  pay  the  expenses  of  the  ship,  nor  by 
the  opinion  of  an  American  minister  expressed  to  the  master,  that  by 
undertaking  the  voyage  he  would  violate  no  law  of  the  United  States. 
The  court  said  that  these  considerations,  '•'  if  founded  in  truth,  present 
a  case  of  peculiar  hardship,  yet  they  afford  no  legal  excuse  which  it  is 
competent  to  this  court  to  admit  as  the  basis  of  its  decision." 

This  is  equally  true  of  the  case  before  us,  for  even  if  the  circum- 
stances may  have  justified  liberal  treatment,  that  cannot  be  permitted 
to  influence  our  decision.  It  belongs  to  another  department  of  the 
Government  to  extend  such  amelioration  as  appears  to  be  demanded  in 
particular  instances. 

Neither  the  case  Les  Cinq  Freres,  4  Lebau's  Xouveau  Code  des 
Prises,  63,  nor  that  of  The  Maria,  6  C.  Eob.  201,  cited  by  counsel,  is  in 
point.  In  the  former,  the  Committee  of  Public  Safety  in  the  year  3 
of  the  French  calendar  of  the  Revolution  decreed  the  condemnation  of 
Les  Cinq  Freres  as  an  enemy's  vessel,  and  of  her  cargo,  although 
belonging  to  Frenchmen,  but  further  decreed  restitution  of  the  cargo 
or  its  value,  as  matter  of  grace,  in  consideration  of  services  rendered 
by  the  claimants  in  furnishing  provisions  to  the  republic,  adding  that 
this  should  not  be  drawn  into  a  precedent.  The  latter  simply  involved 
the  interpretation  of  an  indulgence  specifically  granted  by  the  British 
Government. 

Thus  far  we  have  proceeded  on  the  assumption  that  the  transfer  of 
the  Benito  Estengcr  was  merely  colorable,  and  this,  if  so,  furnished  in 
itself  ground  for  condemnation.  A  brief  examination  of  the  evidence, 
in  the  light  of  well-settled  principles,  will  show  that  the  assumption 
is  correct. 

IMessa's  story  of  the  transfer  was  that  the  steamer  had  been  owned 
by  Gallego,  Messa  and  Company,  and  then  by  himself ;  that  he  was 
compelled  to  sell  in  order  to  get  money  to  live  on  ;  that  he  made 
the  sale  for  $-40,000,  for  which,  or  a  large  amount  of  which,  credit 
was  given  on  an  indebtedness  of  !Messa  to  Beattie  and  Company,  and 
tliat  he  was  employed  by  Beattie  to  go  on  the  vessel  as  his  repre- 
sentative and  business  manager. 

In  short,  the  statements  as  to  price  were  conflicting;  the  reason 
assigned  for  the  sale  was  to  get  money  to  live  on,  and  yet  apparently 

40 


626  EFFECTS    OF   WAR   AS    BETWEEN   ENEMIES.       [PAET  II. 

no  money  passed,  and  Messa  said  that  he  received  credit  for  a  large 
part  of  the  consideration  on  indebtedness  to  claimant's  firm  ;  claimant 
himself  refused  to  describe  tlie  payment  or  payments ;  the  Spanish 
master  and  crew  remained  in  charge;  Messa  went  on  the  voyage  as 
supercargo ;  the  vessel  continued  in  trade,  which,  in  this  instance,  at 
least,  appeared  to  be  plainly  trade  with  the  enemy  ;  and,  finally,  it  is 
said  by  claimant's  counsel  in  his  printed  brief :  "  It  will  not  be  con- 
tended .  upon  this  appeal  that  all  the  interest  of  Mr.  Messa  in  the 
(  Benito  Estenfjer  ceased  on  June  9,  1898.  The  transfer  was  obviously 
,  made  to  protect  the  steamer  as  neutral  property  from  Spanish  seizure. 
That  Mr.  Messa,  however,  still  retained  a  beneficial  interest  after  this 
sale  and  transfer  of  flags,  and  continued  to  act  for  the  vessel  as  super- 
cargo, has  not  been  disputed." 

Tlie  attempt  to  break  the  force  of  this  admission  by  the  contention 
that  the  change  of  flag  was  justifiable  as  made  to  avoid  capture  by 
the  Spanish  is  no  more  than  a  reiteration  of  the  argument  that  Messa 
was  a  Cuban  rebel,  and  his  vessel  a  Cuban  vessel,  which,  as  has  been 
seen,  we  have  been  unable  to  concur  in.  If  the  transfer  were  invalid, 
she  belonged  to  a  Spanish  subject,  she  was  engaged  in  an  illegal 
venture,  and  her  owner  cannot  plead  his  fear  of  Spanish  aggression. 

Transfers  of  vessels  fiagrante  hello  were  originally  held  invalid,  but 
the  rule  has  been  modified,  and  is  thus  given  by  Mr.  Hall,  who,  after 
stating  that  in  France  "  their  sale  is  forbidden,  and  they  are  declared 
to  be  prize  in  all  cases  in  which  they  have  been  transferred  to  neutrals 
after  the  buyers  could  have  knowledge  of  the  outbreak  of  the  war," 
says  :  "  In  England  and  the  United  States,  on  the  contrary,  the  right 
to  purchase  vessels  is  in  principle  admitted,  they  being  in  themselves 
legitimate  objects  of  trade  as  fully  as  any  other  kind  of  merchandise, 
but  the  opportunities  of  fraud  being  great,  the  circumstances  attend- 
ing a  sale  are  severely  scrutinized,  and  the  transfer  is  not  held  to  be 
good  if  it  is  subjected  to  any  condition  or  even  tacit  understanding  by 
which  the  vendor  keeps  an  interest  in  the  vessel  or  its  profits,  a  con- 
trol over  it,  a  power  of  revocation,  or  a  right  to  its  restoration  at  the 
conclusion  of  the  war."  International  Law  (4th  ed.),  525.  And  to 
the  same  effect  is  Mr.  Justice  Story  in  his  Notes  on  the  Principles  and 
Practice  of  Prize  Courts  (Pratt's  ed.),  6.3;  2  AVheat.  App.  30:  "In 
respect  to  the  transfers  of  enemies'  ships  during  the  war,  it  is  certain 
that  purchases  of  them  by  neutrals  are  not,  in  general,  illegal ;  but 
such  purchases  are  liable  to  great  suspicion  ;  and  if  good  proof  be  not 
given  of  their  validity  by  a  bill  of  sale  and  payment  of  a  reasonable 
consideration,  it  will  materially  impair  the  validity  of  a  neutral 
claim  5  *  *  *  and  if  after  such  transfer  tlie  ship  be  employed  habitually 
in  the  enemy's  trade,  or  under  the  management  of  a  hostile  proprietor, 


CHAP.  II.]  THE    "BENITO   ESTENGER."  627 

the  sale  will  be  deemed  merely  colorable  *  and  collusive.  *  *  *  Any- 
thing tending  to  continue  the  interest  of  the  enemy  in  the  ship 
vitiates  a  contract  of  this  description  altogether." 

The  Seeks  Geschwistern,4:  C.  Rob.  100,  is  cited,  in  which  Sir  William 
Scott  said :  "  This  is  the  case  of  a  ship  asserted  to  have  been  pur- 
chased of  the  enemy  ;  a  liberty  which  this  country  has  not  denied  to 
neutral  merchants,  though  by  the  regulation  of  France  it  is  entirely 
forbidden.  The  rule  which  this  country  has  been  content  to  apply  is, 
that  property  so  transferred  must  be  bona  fide  and  absolutely  trans- 
ferred ;  that  there  must  be  a  sale  divesting  the  enemy  of  all  further 
interest  in  it ;  and  that  anything  tending  to  continue  his  interest, 
vitiates  a  contract  of  this  description  altogether." 

In  The  Jemmy,  4  C.  Rob.  31,  the  same  eminent  jurist  observed  : 
"This  case  has  been  admitted  to  farther  proof,  owing  entirely  to  the 
suppression  of  a  circumstance,  which  if  the  court  had  known,  it 
would  not  have  permitted  farther  proof  to  have  been  introduced  ; 
namely,  that  the  ship  has  been  left  in  the  trade,  and  under  the  man- 
agement of  her  former  owner.  Wherever  that  fact  appears,  the  court 
will  hold  it  to  be  conclusive,  because,  from  the  evidentia  ret,  the  strong- 
est presumption  necessarily  ai-ises,  that  it  is  merely  a  covered  and 
pretended  transfer.  The  presumption  is  so  strong  that  scarcely  any 
proof  can  avail  against  it.  It  is  a  rule  which  the  court  finds  itself 
under  the  absolute  necessity  of  maintaining.  If  the  enemy  could  be 
permitted  to  make  a  transfer  of  the  ship,  and  yet  retain  the  manage- 
ment of  it,  as  a  neutral  vessel,  it  would  be  impossible  for  the  court 
to  protect  itself  against  frauds." 

And  in  The  Omnibus,  6  C.  Rob.  71,  he  said  :  "  The  court  has  often 
had  occasion  to  observe,  that  where  a  ship,  asserted  to  have  been 
transferred,  is  continued  under  the  former  agency  and  in  the  former 
habits  of  trade,  not  all  the  swearing  in  the  world  will  convince  it 
that  it  is  a  genuine  transaction." 

The  rule  was  stated  by  Judge  Cadwalader  of  the  Eastern  District 
of  Pennsylvania  thus  :  "  The  rule  of  decision  in  some  countries  has 
been  that,  as  to  a  vessel,  no  change  of  ownership  during  hostilities 
can  be  regarded  in  a  prize  court.  In  the  United  States,  as  in  Eng- 
land, the  strictness  of  this  rule  is  not  observed.  But  no  such  change 
of  property  is  recognized  where  the  disposition  and  control  of  a  vessel 
continue  in  the  former  agent  of  the  former  hostile  proprietors ;  more 
especially  when,  as  in  this  case,  he  is  a  person  whose  relations  of 
residence  are  hostile."     The  Island  Belle,  13  Fed.  Cases,  168. 

So  in  The  Baltica,  Spinks  Prize  Cases,  264,  several  vessels  had  been 
sold  by  a  father,  an  enemy,  to  his  son,  a  neutral,  immediately  before 
the  war,  and  only  paid  for  in  part,  the  remainder  to   be   paid  out  of 


628  EFFECTS   OF   WAR   AS   BETWEEN   ENEMIES.        [PAET  II. 

the  future  earnings  thereof;  and  the  Baltlca,  which  was  one  of  them, 
was  condemned  on  the  ground  of  a  continuance  of  the  enemy's 
interest. 

In  The  Sofflasie,  Spinks  Prize  Cases,  104,  Dr.  Lushington  held  the 
071US  probandi  to  be  upon  the  claimant,  and  made  these  observations : 
"  With  regard  to  documents  of  a  formal  nature,  though  when  well 
authenticated  they  are  to  be  duly  appreciated,  it  does  not  follow  that 
they  are  always  of  the  greatest  weight,  because  we  know,  without 
attributing  blame  to  the  authorities  under  which  they  issue,  they  are 
instruments  often  procured  with  extraordinary  facility.  What  the 
court  especially  desires  is,  that  testimony  which  bears  less  the  ap- 
pearance of  formality, — evidence  natviral  to  the  transaction,  but 
which  often  carries  with  it  a  proof  of  its  own  genuineness ;  the 
court  looks  for  that  correspondence  and  other  evidence  which  natur- 
ally attends  the  transaction,  accompanies  it,  or  follows  it,  and  which 
when  it  bears  upon  the  face  of  it  the  aspect  of  sincerity,  will  always 
receive  its  due  weight." 

In  The  Ernst  Merck,  Spinks  Prize  Cases,  98,  the  sale  was  to  neutrals 
of  Mecklenburg  shortly  before  the  breaking  out  of  war,  and  it  was  ruled 
that  the  onus  of  giving  satisfactory  proof  of  the  sale  was  on  the 
claimant,  and  without  it  the  court  could  not  restore,  even  though  it 
was  not  called  on  to  pronounce  affirmatively  that  the  transfer  was 
fictitious  and  fraudulent.  In  that  case  the  vessel  was  condemned 
partly  because  of  absence  of  proof  of  payment,  Dr.  Lushington  say- 
ing :  "  We  all  know  that  one  of  the  most  important  matters  to  be 
established  by  a  claimant  is  undoubted  proof  of  payment." 

To  the  point  that  the  burden  of  proof  was  on  the  claimant  see  also 
Tlie  Jenny,  5  Wall.  183 ;  The  Amiable  Isabella,  6  Wheat.  1 ;  The  Lilla, 
2  Cliff.  169 ;  Story's  Prize  Courts,  26. 

We  think  that  the  requirements  of  the  law  of  prize  were  not  sat- 
isfied by  the  proofs  in  regard  to  this  transfei-,  and  on  all  the  evi- 
dence are  of  opinion  that  the  court  below  was  right  in  the  con- 
clusion at  which  it  arrived. 

Decree  affirmed. 

Mr.  Justice  Shiras,  Mr.  Justice  White  and  Mr.  Justice  Peckham 
dissented.^ 


1  It  would  seem  that  a  slight  inaccuracy  lias  crept  into  the  reported  judgment  of 
the  learned  Chief  Justice  ;  for  7'/(e  Baltica,  1855,  Spinks  P.  C.  204,  was  reversed  on 
appeal,  11  Moore  P.  C.  1857,  141,  where  it  was  held  by  lit.  lion.  T.  Peniberton  Leigh, 
aflirming  T/ie  Ariel.,  1857,  11  id.  119,  that  the  saleof  a  ship  absolutely  and  honajide  by 
an  enemy  to  a  neutral,  immlnenle  hello,  or  even  flagrante  bello,  is  not  illegal.  In  the 
case  of  The  Ariel  part  only  of  the  purchase  money  was  paid  at  the  time  of  the  pur- 


CHAP.  II.]  THE   "  VKOW   HENIUCA."  629 


Section  35.  —  Freight  and  Liens. 


THE   "VEOW   HEXRICA." 

High  Court  of  Admiralty,  1803. 

(4  C.  Robinson,  343.) 

This  was  a  case  of  a  Danish  vessel  taken  on  a  voyage  from 
Valencia  to  London.  The  ship  had  been  restored  with  freight  to  be 
a  charge  on  the  cargo,  which  was  condemned,  bnt  the  proceeds  not 
being  sufficient  to  pay  the  freight  and  the  expenses  of  the  captor,  it 

chase,  the  remainder  being  agreed  to  be  paid  out  of  the  earnings  of  the  ship.  Before 
all  the  stipulated  price  was  paid,  the  ship  was  seized  in  a  British  port  as  prize,  and 
condemned  in  the  High  Court  of  Admiralty,  on  the  ground  that  tlie  enemy's  interest 
in  the  ship  was  not  divested,  as  tlie  residue  of  tiie  purchase  mone}'  was  to  be  paid  out 
of  tiie  earnings.  Sucli  condemnation  was  reversed  on  appeal,  as  the  non-payment  of 
part  of  the  purchase  money  did  not  create  a  lien  on  the  freiglit  and  ship  in  favor  of 
the  seller,  so  as  to  render  the  ship  in  possession  of  a  neutral  owner  liable  to  seizure 
by  a  belligerent.  It  was  further  held  that  liens,  wiiether  in  favor  of  a  neutral  or  an 
enemy's  ship,  or  in  favor  of  an  enemy  or  a  neutral  ship,  are  equally  to  be  disregarded 
in  a  court  of  prize. 

In  the  case  of  The  Baltica,  the  vessel  was  at  the  time  of  the  sale  in  the  prosecu- 
tion of  a  voyage  from  Libau,  an  enemy's  port,  to  Copenhagen,  a  neutral  port,  where 
she  arrived  and  was  taken  possession  of  by  the  purchaser.  It  was  held,  reversing  Dr. 
Lushington's  judgment  in  Spinks,  2G4,  that  the  sale,  though  in  tra/isitii,  was  valid,  as 
the  transitus  had  ceased  when  the  vessel  had  come  into  possessiim  of  the  purchaser, 
which  took  place  before  the  seizure.  It  was  further  lield  that  a  neutral,  while  war  is 
imminent,  or  even  after  it  has  commenced,  is  at  liberty  to  purchase  either  goods  or 
ships  (not  being  shii>s  of  war)  from  either  belligerent,  and  the  purchase  is  valid 
whether  the  subject  of  it  be  lying  in  a  neutral  or  an  enemy's  port. 

See,  also.  The  Georgia,  1868,7  Wall.  32,  citing  with  approval  Rt.  Hon.  T.  Pember- 
ton  Leigh's  judgment  in  The  Baltica,  and  holding  that  a  bona  fide  purchase  for  a  com- 
mercial purpose  by  a  neutral,  in  his  own  home  port,  of  a  ship  of  war  of  a  belligerent 
that  had  fled  to  such  a  port  in  order  to  escape  from  enemy  vessels  in  pursuit,  but 
which  was  bonajide  dismantled  prior  to  the  sale  and  afterwards  fitted  up  for  the  mer- 
chant service,  does  not  pass  a  title  above  the  right  of  capture  by  the  other  belligerent. 
Perhaps  the  inexorable  rule  of  law  against  transfers  in  transitu,  unless  (as  Mr.  Hall 
expresses  it,  in  his  Int.  Law,  p.  526),"  the  transferee  has  actually  taken  possession"  is 
nowhere  better  put  than  by  Mr.  Justice  Swayne  in  delivering  the  opinion  of  the  court 
in  The  &////,  1865,  3  Wall.  451,  460:  "  The  ownership  of  property  in  such  cases  can- 
not be  changed  while  it  is  in  transitu.  The  capture  clothes  the  captors  with  all  the 
rights  of  tlie  owner  which  subsisted  at  the  commencement  of  the  voyage,  and  any- 
thing done  thereafter,  designed  to  incumber  the  property,  or  change  its  ownership,  is 
a  nullity.  Sound  public  policy  and  the  right  administration  of  justice  forbid  it.  This 
rule  is  rigidly  enforced  by  all  prize  tribunals.     The  property  was  shipped  to  the 


G30  EFFECTS   OF    WAR    A3    BETWEEN    ENEMIES.       [PAIIT  11. 

was  prayed  on  the  part  of  the  neutral  ship,  that  the  priority  of  pay- 
ment might  be  given  to  freight,  on  the  authority  of  the  Bremen 
Flurjfje,  I C.  Rob.,  90. 

Judgment, — Sir  W.  Scott  : — 

« I  have  considered  the  eases  which  I  directed  to  be  looked 
up,  and  I  see  no  reason  to  alter  the  opinion  which  I  before 
expressed,  that  freight  is,  in  all  ordinary  cases,  a  lien  which 
is  to  take  place  of  all  others.  The  captor  takes  cum  onere  : 
It  is  the  allowed  privilege  of  neutral  trade  to  carry  the  property  of 
the  enemy,  subject  to  its  capture,  and  to  the  temporary  detention  of 
his  vessel ;  and  if  the  party  does  not  prevaricate,  or  conduct  him- 
self in  any  respect  with  ill-faith,  he  is  entitled  to  his  freight.  This 
is  the  rule  which  I  am  disposed  to  apply  in  all  cases  of  neutral  ships 
carrying  on  their  ordinary  commerce.  It  is  the  general  rale,  which 
may  nevertheless  be  liable  to  be  altered  by  circumstances.  There  is 
one  class  of  cases  to  which  I  think  it  ought  not  to  be  applied — I 
mean  the  case  of  ships  carrying  on  a  trade  between  ports  of  allied 
enemies — a  trade  which  may  be  said  to  arise  in  a  great  measure 
out  of  the  circumstances  of  war,  though  not  altogether :  I  say  not 
altogether,  because  such  a  trade  exists  in  a  limited  degree  in  times 
of  peace. 

'•In  such  a  course  of  trade,  although  the  Court  has  not  altogether 
refused  freight  to  the  neutral  ship,  yet  it  may  not  think  it  unreason- 
able that  the  captor  should,  in  preference,  be  entitled  to  his  expenses, 
Inasmuch  as  the  nature  of  such  a  trade  cannot  but  very  much  influ- 
ence the  judgment  which  he  must  unavoidably  form  of  his  duty  to 
bring  in  the  cargo  for  adjudication.  In  the  present  case,  the  voyage 
is  not  between  the  ports  of  allied  enemies,  but  between  the  ports  of 
two  belligerents,  from  Valencia  to  London ;  that  constitutes,  I 
I  think,  a  sort  of  middle  case,  with  respect  to  the  obligation  by  which 
'  the  captor  might  conceive  himself  bound  to  bring  the  cargo  to  adju- 
dication. There  might  be  a  presumption,  undoubtedly,  that  the 
property  belonged  to  the  enemy  exporter ;  but  there  is  a  foundation 
also  for  presuming  that  it  might  belong  to  the  consignee,  and  that  it 
would  not  have  been  sent  on  a  destination  to  this  country,  but  under 
the  protection  of  a  license. 

"It  is,  therefore,  a  case  of  a  mixed  nature,  to  which  I  shall  apply 

enemy.  It  was  diverted  from  its  course  by  the  capture.  The  allegation  of  a  lion 
wears  the  appearance  of  an  afterthoiiglit.  It  strikes  us  as  a  scheme  devised  under 
pressure,  to  save,  if  possible,  something  from  tlie  vortex  which  it  was  foreseen  inevita- 
bly awaited  the  vessel  and  cargo." 

On  the  question  of  colorable  transfer  in  war,  see,  also,  The  Texan  Star,  3  Moore 
Int.  Arb.  23G0,  and  cases  tiiere  cited.  —  Ed. 


CHAP.  II.]  THE   "rORTUNA."  631 

a  sort  of  a  middle  judgment.  I  will  allow  the  captor  bis  law 
expenses,  and  direct  the  other  expenses  to  be  postponed  to  the  pay- 
ment of  freight." 


THE   "FOETUXA." 

High  Court  of  Admiralty,  1802. 

(4  C.  Robinson,  278.) 

This  was  a  case  on  petition  of  the  captors,  praying  to  be  allowed 
freight  for  a  cargo,  which  had  been  restored  as  neutral  property.  The 
demand  for  freight  was  founded  on  a  suggestion,  that  the  ship, 
which  had  been  condemned,  had  actually  performed  the  contract  of 
the  original  affreightment,  by  carrying  the  cargo  to  the  place  of  its 
destination.  ^ 

Judgment, — Sir  W.  Scott  : — 

"  This  is  the  case  of  a  ship  which  had  carried  a  cargo  of  corn  to 
Lisbon,  the  original  port  of  destination.  In  such  a  case  I  appre- 
hend the  rule  to  be,  that  the  captor  is  entitled  to  freight,  and  on  the 
same  principle,  on  which  he  would  be  held  not  to  be  entitled,  where 
he  does  ?wt  proceed,  and  perform  the  original  voyage.  The  specific 
contract  is  performed  in  the  one  case,  and  not  performed  in  the 
other.  It  is  the  rule  of  practice  laid  down  in  the  case  of  the  Vrey- 
heid.  Lords,  1784,  a  case  perfectly  within  my  recollection  as  a  case 
very  deliberately  considered  at  the  Cockpit.  It  is  conformable  to 
the  text  law,  and  the  opinion  of  eminent  jurists.  '  Quod  additur  da 
vecturse  pretiis  solvendis  (says  Bynkershoek),  ejus  juris  rationem 
non  adsequor.  Satis  intelligo,  qui  navem  hostilem  occupant,  etiam 
occupasse  omne  jus  quod  navi,  sive  navarcho  debebatur,  ob  merces 
translatas  in  portum  destinatum,  Proponitur  autem,  navem  in  ipso 
itinere  fuisse  captam.  Eccur  igitur  capienti  solvam  mercedes  ?  Si 
qui  cepit  navem,  eam  cum  mercibus  in  locum  destinatum  perducere 
paratus  sit,  ejus  juris  rationem  intelligerem,  ceteroquin  non  in- 
telligo.' 

"  In  the  case  of  the  Vreyheid,  all  the  considerations  that  could  be 
applied  to  this  question  were  fully  canvassed,  and  it  was  then  recog- 
nized as  the  true  rule,  that  the  captor  icho  has  performed  the  con- , 
tract  of  the  vessel  is,  as  a  matter  of  right,  and  de  cnrsti,  entitled  to ' 
freight;  although,  if  he  has  done  anything  to  the  injury  of  the  prop- 
erty, or  has  been  guilty  of  any  misconduct,  he  may  remain  answer- 

1  The  statement  has  been  shortened  and  part  of  tlie  opinion  is  omitted.  —  Ed. 


632  EFFECTS    OF   WAR    AS   BETWEEN   ENEMIES.       [PART  IT. 

able  for  the  effect  of  such  misconduct,  or  injury,  in  the  way  of  a  set- 
off against  him. 

''The  case  then  is  reduced  to  a  question,  whether  the  captor,  in 
this  instance,  has  done  anything  to  forfeit  the  right,  which,  under 
the  general  rule,  he  had  acquired.     *     *     * 

"Under  the  circumstances  of  this  case,  I  am  of  opinion,  that  the 
captor  has  not  forfeited  the  interest  which  he  had  acquired. 

''Freight  decreed  to  the  captor."  ^ 


THE   "ANTONIA  JOHANNA." 

Supreme  Court  of  the  United  States,  1816. 

(1  Wheaton,  159.) 

A  neutral  ship  was  chartered  for  a  voyage  from  London  to  St. 
Michaels,  thence  to  Fayal,  thence  to  St.  Petersburg  or  any  port  in 
the  Baltic,  and  back  to  London,  at  the  freight  of  1,000  guineas. 
On  her  passage  to  St.  Michaels  she  was  captured  and  brought  into  the 
port  of  Wilmington,  N.  C,  for  adjudication.  A  part  of  the  cargo  was 
condemned,  and  part  restored.^ 

Story,  J.,  delivered  the  opinion  of  the  court. 

"  The  next  inquiry  is,  as  to  the  freight  decreed  to  the  master.  As 
no  appeal  was  interposed  to  the  decree  of  the  District  Court,  allowing 
the  whole  freight  for  the  whole  voyage,  the  question,  whether  more 
than  a  pro  rata  freight  was  due  (a  question  which  would  otherwise 
have  deserved  grave  consideration),  does  not  properly  arise.  The 
only  discussion  which  can  now  be  entertained  is,  whether  the  freight 
so  decreed  ought  not  to  have  been  charged  upon  the  whole  cargo, 
instead  of  being  charged  upon  a  portion  of  it.  And  we  are  all  of 
fl  opinion  that  it  was  properly  a  charge  upon  the  whole  cargo.  Although 
'  capture  be  deemed,  in  the  prize  courts,  in  many  cases,  equivalent  to 

1  Compare  The  Diana,  1803,  5  C.  Rob.  07,  and  Vrow  Anna  Catharlna,  1806,  6  C.  Rob. 
209,  in  whiclj  the  special  circumstances  of  The  Diana  are  explained  ;  the  rule  of  the 
text  aflBrmed  and  restated  and  the  rule  pro  rata  itineris  rejected.  In  Palmer  v. 
Lorilhird,  1819,  10  Johns.  848,  it  was  lield  by  Chancellor  Kent  that  a  contract  of 
affreightment  is  not  dissolved  by  a  hostile  blockade  or  investment  of  the  port  of 
departure  ;  the  performance  of  it  is  merely  suspended  and  the  shipowner  may  detain 
the  goods  until  he  can  prosecute  the  vo.vage  with  safety  or  the  freighter  demand 
them  on  tendering  the  full  freight.  It  is  only  when  the  voyage  is  broken  up,  on  the 
part  of  the  shipowner  or  master,  or  the  completion  of  it  has  become  unlawful,  that 
the  contract  is  dissolved.     See,  also,  The  Commerc.en,  1816,  1   Wheat,  382,  infra. — Ed. 

2  Statement  by  the  editor  and  only  so  much  of  the  judgment  is  given  as  relates  to 
the  question  of  freight.  — Ed. 


CHAP.  II.]  THE    "  ANTONIA    JOHANNA."  633 

delivery,  yet  the  captors  cannot  be  liable  for  more  than  the  freight 
of  the  goods  actually  received  by  thera.  The  capture  of  a  neutral 
ship,  having  enemy's  property  on  board,  is  a  strictly  justifiable 
exercise  of  the  rights  of  war.  It  is  no  wrong  done  to  the  neutral, 
even  though  the  voyage  be  thereby  defeated.  The  captors  are  not, 
therefore,  answerable  in  pmnam  to  the  neutral  for  the  losses  which  he 
may  sustain  by  a  lawful  exercise  of  belligerent  rights.  It  is  the 
misfortune  of  the  neutral,  and  not  the  fault  of  the  belligerent.  By 
the  capture,  the  captors  are  substituted  in  lieu  of  the  original  owners, 
and  they  take  the  property  cum  onere.  They  are,  therefore,  respon- 
sible for  the  freight  which  then  attached  upon  the  property,  of  which 
the  sentence  of  condemnation  ascertains  them  to  be  the  rightful 
OAvners  succeeding  to  the  former  proprietors.  So  far  the  rule  seems 
perfectly  equitable  ;  but  to  press  it  farther,  and  charge  them  with  the 
freight  of  goods  which  they  have  never  received,  or  with  the  burden 
of  a  charter  party  into  which  they  have  never  entered,  would  be 
unreasonable  in  itself,  and  inconsistent  with  the  admitted  principles 
of  prize  law.  It  might,  in  a  case  of  justifiable  capture,  by  the  con- 
demnation of  a  single  bale  of  goods,  lead  the  captors  to  their  ruin  by 
loading  thera  with  the  stipulated  freight  of  a  whole  cargo." 

Decree  affirmed,  except  as  to  the  freight.'- 

Davis,  J.,  in  Hooper,  Adm'r,  v.  U.  S.,  1887,  22  Court  of  Claims,  408, 
460.  In  case  of  capture  the  general  rule  is  that  the  neutral  carrier 
of  enemy's  property  is  entitled  to  his  freight  (Story,  J.,  in  The  Comer- 
cee7i,  1  Gallison,  264).  Sir  William  Scott  held  very  firmly  by  this 
rule  in  the  case  of  Der  Mohr,  3  C.  Rob.  129,  and  4  C.  Rob.  315,  a  case 

1  It  lias  been  held  that  the  charter-party  is  not  the  measure  by  which  the  captor  is, 
in  all  cases,  bound,  even  where  no  fraud  is  imputed  to  the  contract  itself.  When,  by  ; 
the  events  of  war,  navigation  is  rendered  so  hazardous  as  to  raise  the  price  of  freight 
to  an  extraordinary  height,  captors  are  not,  necessarily,  bound  to  that  inflamed  rate 
of  freight.  When  no  such  circumstances  exist,  when  a  ship  is  carrying  on  an  ordinary 
trade,  the  charter-party  is  undoubtedly  the  rule  of  valuation,  unless  impeached;  the 
captor  puts  himself  in  the  place  of  the  owner  of  the  cargo,  and  takes  with  that  specific 
lien  upon  it.  But  a  very  different  rule  is  to  be  applied,  when  the  trade  is  subjected  to 
very  extraordinary  risk  and  hazard,  from  its  connection  with  the  events  of  war,  and 
the  redoubled  activity  and  success  of  the  belligerent  cruisers.  The  Twilling  Riget, 
1804,  5  Rob.  82. 

See  the  ship  Nathaniel  Hooper,  3  Sumn.  1839,  549,  where  there  is  an  elaborate 
review  of  authority  that  the  doctrines  of  prize  courts,  in  the  administration  of  prize  I 
law  as  to  freight,  are  not  generally  applicable  to  cases  of  mere  civil  commercial  ven- 
tures,  or  cases  of  civil  salvage.  See,  also,  3  Kent's  Com.  249 ;  Carver's  Carriage  of 
Goods  by  Sea  (3d  ed.  1900),  §§  236,  237,  244-247,  and  cases  cited  in  the  rules  to  these 
sections.  —  Ed. 


634  EFFECTS    OF   WAR    AS    BETWEEN   ENEMIES.       [PART  IT. 

of  great  hardship,  appealing  strongly  to  the  sympathy  of  the  court. 
In  that  case  he  said  : 

"  In  an  unfortunate  case  like  the  present,  the  court  would  certainly 
be  disposed  to  give  the  captor  all  possible  relief.  I  need  not  add  that 
no  relief  is  possible  which  cannot  be  given  consistently  with  the 
justice  due  to  the  claimant.  The  demand  of  freight  is,  I  apprehend, 
an  absolute  demand,  in  cases  where  the  ship  is  pronounced  to  be 
innocently  employed.  *  *  *  The  freight  is  as  much  a  part  of  the  loss 
as  the  ship,  for  he  (the  captor)  was  bound  to  answer  equally  for  both. 
The  captor  has,  by  taking  possession  of  the  whole  cargo,  deprived 
the  claimant  of  the  fund  to  which  his  security  was  fixed.  He  was 
bound  to  bring  in  that  cargo  subject  to  the  demand  for  freight.  He 
was  just  as  answerable  for  the  freight  of  the  voyage  as  for  the  ship 
which  was  to  earn  it,  or  which  was  rather  to  be  considered  as  having 
already  earned  it.  In  the  room  of  this  fund  the  captor  has  substituted 
his  own  responsibility,  for  loss  accrues  by  the  fault  of  his  agent.  I 
see  no  distinction  under  which  I  can  pronounce  that  the  claimant  is 
not  as  much  entitled  to  the  freight  as  to  the  vessel."  See,  also, 
1  Gallison,  274,  the  Arina  Green. 

Upon  an  open  insurance  policy  gross  freight  is  recoverable,  2 
Pliillips  Ins.  §  12-38.  As  to  insurance,  the  inchoate  right  to  freight 
vests  directly  "  tlie  ship  has  broken  ground  on  the  voyage  described  in 
the  charter-party,"  and  there  is  an  insurable  interest  "where  there  is 
an  expectancy  coupled  with  a  present  existing  title."  Liicena  v. 
Cnw-ford,  2  Bos.  and  Pull.  N.  R.  269  ;  1  Phillips  Ins.,  §  334,  p.  192. 

Freight,  then,  is  properly  insurable  and  collectible.  It  has  value, 
though  the  right  as  against  the  freighter  may  be  inchoate  until 
delivery.  As  to  the  freighter  the  shipowner  is  without  redress,  unless 
there  be  delivery  in  accordance  with  the  contract,  but  as  to  an  insurer 
or  tort-feasor,  there  is  a  right  to  redress  upon  the  happening  of  an 
interruption  of  the  voyage.  The  amount  of  that  redress  and  the 
method  of  computing  it  in  the  cases  now  submitted  to  us  of  illegal 
capture  are  now  to  be  decided.  The  shipowner  has  a  right  to  a 
reasonable  return  upon  his  investment,  for  the  risk  to  which  his 
property  is  subjected,  for  its  depreciation  while  engaged  in  the  under- 
taking, and  for  the  expenses  to  which  he  is  subjected  in  carrying  it 
out.  The  measure  of  that  return,  based  upon  the  theory  of  a  complete 
voyage,  he  has  himself  fixed  in  his  contract  of  affreightment.  If  his 
voyage  be  not  completed,  but  be  interrupted  and  his  property  be  lost 
by  the  act  of  a  wrongdoer,  then,  as  against  that  wrongdoer,  the 
maxim  restutio  in  inte  grum  applies.  If  the  voyage  were  completed 
the  difficulty  would  not  be  serious,  for  as  a  guide  we  should  have 
a  contract  made  by  parties  opposed  in  interest  and  familiar  with  the 


CHAP.  II.]  HOOPER,    ADM'e,   V.    UNITED    STATES.  635 

business.  As  the  voyage  has  not  been  completed,  an  allowance  of 
gross  freight  would  be  more  than  a  restitutio  in  integrum,  and  would 
neglect  a  deduction  for  expenses  necessarily  to  be  incurred  in  com- 
pleting the  contract  and  in  conveying  the  cargo  to  the  point  of 
delivery.  To  allow  gross  freight  under  these  circumstances  would  in 
effect  not  merely  reimburse  the  owner,  but  render  the  seizure  a  matter 
of  profit  to  him,  and  we  do  not  understand  that  punitive  damages 
should  be  recovered  in  the  cases  now  before  us.  The  vessel  having 
been  destroyed  before  the  completion  of  the  voyage,  has  not  been 
so  long  employed  as  the  contract  contemplated,  her  crew  have  received 
less  wages,  and  her  hull  and  outfit  have  received  less  deterioration. 
She  has  only  earned  freight  pro  tanto.  On  the  other  hand,  the  ex- 
penses of  freight  earning  are  much  greater  at  the  beginning  of  the 
voyage  than  at  any  other  period,  for  then  advances  are  made  seamen, 
stores  are  shipped,  port  charges  and  the  cost  of  loading  have  to  be 
met.  Therefore  to  divide  the  total  freight  by  the  number  of  days  out 
of  port  would  not  be  fair  to  the  shipowner ;  to  deduct  from  the 
total  freight  the  cost  of  the  voyage  from  the  place  of  destruction  to 
port  of  destination  would  be  a  fairer  rule,  could  those  expenses  be 
ascertained. 

To  compute  the  amount  of  this  freight  in  each  instance  is  practi- ' 
cally  impossible,  so  that  the  court  is  forced  to  the  adoption  of  some  { 
general  rule  which  in  our  opinion  is  a  fair  result.  The  diflficulty  is 
not  a  novel  one,  and  the  method  of  solution  not  without  precedent. 
Those  familiar  with  the  proceedings  of  prize  courts  know  that  a 
substantially  arbitrary  rule  is  there  often  adopted  in  practice  to  en- 
force justice,  and  now,  nearly  a  hundred  years  after  the  events  from 
which  these  claims  arise,  when  all  witnesses  are  dead  and  many- 
records  destroyed,  we  are  forced  to  this  course,  and  it  is  evidently 
impossible  to  estimate  in  every  instance  precisely  the  proportion  of 
freight  earned.  Where  such  an  estimate  can  be  made  we  shall  make 
it,  in  other  cases  we  shall  adopt  a  general  rule. 

In  seeking  for  such  a  rule,  we  learn  that  in  commercial  cities,  in. 
the  adjustment  of  average  losses,  there  is  a  practice  to  award  arbi-j 
trarily  two-thirds  of  the  full  freight  on  the  immediate  voyage.  This 
course  was  in  effect  followed  by  the  commissioners  under  the  treaty 
of  1831  with  France,  who  made  a  similar  allowance  as  a  fair  measure 
of  the  increase  in  value  of  the  cargo  by  reason  of  the  distance  to 
which  it  had  been  transported  at  the  time  of  capture  ;  and  the  award 
was  made  to  the  shipper  if  he  had  paid  freight ;  to  the  shipowner  if 
the  freight  had  not  been  paid. 

After  carefully  examining  the  cases  before  us  we  conclude  that  this 
rule  is  substantially  just,  and  we  adopt  it. 


636  EFFECTS  OF    WAR   AS   BETWEEN   ENEMIES.       [PART  11. 

This  brings  us  to  another  point.  The  Nancy  was  under  charter  for 
a  round  voyage — Baltimore  to  Jamaica  and  return.  She  was  de- 
stroyed on  the  outward  voyage.  Is  she  entitled  to  an  allowance  for 
freight  based  upon  the  entire  contract  contained  in  the  charter- 
party  ? 

As  against  an  insurer  or  tort-feasor  the  inchoate  right  to  freight 
vests  when  the  vessel  breaks  ground  "  on  the  voyage  described  in  the 
charter-party"  (sujjra).  An  insurable  interest  in  freight  cannot  spring 
from  a  mere  "  expectancy,"  but  may  spring  from  an  "  expectancy " 
when  this  is  coupled  with  "  a  present  existing  title."  Lucena  v. 
Crawford,  supra. 

In  cases  of  general  average  for  jettison,  Lowndes  states  the  rule 
to  be  that  "  when  a  ship  is  chartered  to  fetch  or  carry  a  cargo  belong- 
ing to  the  charter,  the  freight  under  the  charter  must  contribute 
to  the  general  average,  whether  or  not  the  cargo  is  on  board  the  ship 
at  the  time  of  the  general  average  act,  since  the  loss  of  the  chartered 
ship,  whether  laden  or  not,  would  deprive  the  shipowner  of  his  ex- 
pected freight."     Lowndes,  on  General  Average,  236. 

It  has  been  held  in  this  country  that  where  a  gross  sum  was  to  be 
paid  as  freight  for  a  voyage  out  and  return,  the  principal  object  of  the 
voyage  being  to  obtain  a  return  cargo,  the  freight  for  the  whole  trip 
must  contribute  to  general  average  on  the  outward  voyage.  The 
Mary,  1  Sprague's  Decisions,  17.  The  same  rule  has  been  adopted  in 
cases  of  salvage.  The  Nathaniel  Hooper,  3  Sumner,  542  ;  The  Prog- 
ress, Edwards,  210 ;  The  Dorothy  Foster,  6  C.  Kob.  88 ;  see,  also, 
Livingston  v.  Columbia  Insurance  Company,  3  Johns.  (IS.  Y.),  49; 
Hart  V.  Delaware  Insurance   Company,   2  Wash.  C.  C.  346. 

The  decisions  on  this  question  in  the  United  States  do  not  go  so  far 
as  those  in  England,  but  we  lean  to  the  doctrine  of  Sir  William 
Scott  and  Dr.  Lushington,  as  better  applicable  to  the  cases  now  before 
us,  that  when  a  vessel  is  actually  under  contract  for  a  voyage  from 
■  one  port  to  another,  thence  to  proceed  to  a  third,  she  has  such  ''  a 
present  existing  title "  in  the  freight  money  of  the  entire  voyage 
as  to  authorize  a  recovery  based  upon  the  total  freight  money  for 
the  round  trip. 

Of  course  she  is  not  entitled  to  gross  freight,  and  we  must  not  be 
understood  as  intending  any  application  of  this  principle  to  a  vessel 
proceeding  under  a  mere  "  expectancy  "  of  finding  her  cargo  at  her 
first  port  of  call.  The  principle  only  covers  those  cases  where  there 
is  an  assurance  of  freight  from  her  first  port  of  call  to  her  second,  and 
a  price  stipulated  to  be  paid  therefor. 


CHAP.  II.]  THE   "  CARLOS   F.    ROSES."  637 

THE  "CARLOS  F.  ROSES." 

Supreme  Couut  of  the  United  States,  1899. 

(177    United   States,   655.) 

Mr.  Chief  Justice  Fuller/  delivered  the  opinion  of  the  court. 

The  President's  proclamation  of  April  2G,  1898,  declared  the  policy 
of  the  government  in  the  conduct  of  the  war  would  be  to  adhere  to 
the  rules  of  the  Declaration  of  Paris  therein  set  forth,  one  of  them 
being  thus  expressed:  "Neutral  goods  not  contraband  of  war  are  not 
liable  to  confiscation  under  the  enemy's  flag.'"' 

Tiie  question  is  whether  this  cargo  when  captured  was  enemy  prop- 
erty or  not.     The  district  court  held  that  both  the  title  and  right  of 
possession  were  in  these  neutral  claimants  at  the  time  of  the  capture, 
"as  evidenced  by  t!ie  indorsed  bills  of  lading  and  the  paid  bills  of 
exchange,"  and,  therefore,  entered  the  decree  in  claimant's  favor.     As  i 
the  vessel  was  an  enemy  vessel  the  presumption   was  that  the  cargo  ; 
was  enemy's  property,  and  this  could  only  be  overcome  by  clear  and  ' 
positive  evidence  to  the  contrary.     The  burden  of  proving  ownership 
rested  on  claimants.     Tlte  London  Packet,  5  Wheat.  132 ;   The  Sally 
Magee,  3  Wall.  451 ;   The  Benito  Estenger,  176  U.  S.  568. 

Further  proofs  on  claimant's  behalf  were  ordered  to  be  furnished 
■within  sixty  days  from  June  2 ;  and  the  time  was  enlarged  to  August 
31 ;  and  again  to  October  15.  The  proofs  tendered  were  three  affi- 
davits of  claimants'  manager  sworn  to  September  27,  October  12  and 
October  21,  1898,  respectively,  with  accompanying  papers.  Such  ex 
liarte  statements,  where  further  proofs  have  been  ordered,  though  ad- 
mitted without  objection,  are  obviously  open  to  criticism,  but  without 
pausing  to  comment  on  these  in  that  aspect,  we  inquire  whether  they 
satisfy  the  requirements  of  the  law  of  prize  in  respect  of  the  establish- 
ment of  the  neutral  character  of  this  cargo  under  the  circumstances. 

Gibernau  and  Company  were  citizens  of  a  neutral  state ;  they  were 
evidently  commission  merchants,  and  in  each  invoice  a  charge  for 
their  commission  on  the  shipment  appears.  The  invoices  expressly 
provided  that  the  goods  were  shipped  "to  order  for  account  and  risk 
and  by  order  of  the  parties  noted  below."  The  consignees  noted  be- 
low in  the  invoice  of  the  jerked  beef  were  the  owners  of  the  vessel, 
"  the  expedition  or  voyage  of  the  Carlos  F.  Roses  "  and  "  Mr.  Pedro 
Pages  of  Havana,"  all  Spanish  subjects.  The  consignees  of  the  gar- 
lic were  "  Mr.  Pedro  Pages  "  and  the  undersigned  ;  that  is,  Gibernau 

1  Statement  of  the  facts  is  omitted.  — Ed. 


638  EFFECTS   OF   WAR    AS   BETWEEN   ENEMIES.       [PART  11. 

Knd  Company.  There  were  three  sets  of  bills  of  lading  issued  by  the 
nuister  to  Gibernau  and  Company.  One  covered  the  portion  of  the 
shipment  of  jerked  beef  made  for  the  account  of  the  vessel ; 
another,  the  portion  of  that  shipment  made  for  the  account  of 
Pages;  the  third,  the  shipment  of  garlic  made  for  the  joint 
account  of  Pages  and  Gil^ernau  and  Company.  All  the  "bills  set 
forth  that  the  goods  were  taken  for  the  account  and  at  the 
risk  of  whom  it  might  concern.  The  ship's  manifest  was  signed 
under  date  March  15,  and  the  destination  of  the  cargo  was  stated 
thus :  "  Shipped  by  Pla  Gibernau  Co,  To  order.-'  The  vise  of  the 
counsel  of  Spain,  dated  the  day  before,  was  :  "  Good  for  Havana,  with 
a  cargo  of  jerked  beef  and  garlic."  As  the  vessel  had  a  share  in  the 
shipment  of  the  jerked  beef,  and  the  consignees  were  named  in  the 
invoices,  which  set  forth  that  the  shipments  were  made  by  their 
orders  for  their  account  and  at  their  risk,  it  would  appear  that  the 
manifest  was  erroneous,  and  this  and  the  fact  that  the  bills  of  lading 
stated  that  tlie  goods  were  taken  "  for  account  of  whom  it  may  con- 
cern," should  be  especially  noted,  since  the  reasonable  inference  is 
that  the  consignees  must  have  been  known  to  the  master.  And  it  also 
should  be  observed  that  there  was  no  charter-party,  which  Avould 
have  necessarily  revealed  the  engagements  of  the  vessel,  but  which 
naturally  would  not  be  entered  into  if  the  commercial  venture  was 
that  of  her  owner.  The  general  rule  is  that  a  consignor  on  delivering 
goods  ordered,  to  a  master  of  a  ship,  delivers  them  to  him  as  the  agent 
of  the  consignee  so  that  the  property  in  them  is  vested  in  the  latter 
from  the  moment  of  such  delivery,  though  the  rule  may  be  departed 
from  by  agreement  or  by  a  particular  trade  custom,  whereby  the  goods 
are  shipped  as  belonging  to  the  consignor  and  on  his  account  and  risk. 
We  think  that  on  the  face  of  the  papers  it  must  be  concluded  that 
when  these  goods  were  delivered  to  the  vessel  they  became  the  prop- 
erty of  the  consignees  named  in  the  invoices.  Hence  the  shipments  of 
jerked  beef  must  be  regarded  as  owned  by  Pages,  or  b}^  him  and  the 
owners  of  the  Carlos  F.  Roses.  One  half  of  the  garlic  belonged  to 
Pages,  the  remaining  half  was  consigned  to  Gibernau  and  Company, 
and  they  did  not  claim,  and  have  not  claimed  it,  nor  was  it  asserted 
that  Gibernau  and  Company  retained  the  ownership  of  any  part  of  the 
cargo  after  its  delivery  to  the  vessel.  Property  so  long  unclaimed 
may  be  treated  as  in  any  view  good  prize.  The  Adeline,  9  Cranch, 
244;  The  Harrison,  1  Wheat.  298.  In  fact,  claimants  admit  that  the 
whole  cargo  "  was  ultimately  destined  for  Don  Pedro  Pages  of 
Havana."  The  bill  of  exchange  drawn  by  Gibernau  and  Company 
named  Klein  wort  Sons  and  Company  as  accepters,  and  directed  them  to 
charge  the  amount  to  the  account  of  "  Pedro  Pagtis  of  Havana  as  per 


CHAP.  II.]  THE   "  CARLOS    F.    ROSES."  639 

advice.'"'  The  bill  drawn  by  IMaristany  also  named  Kleinwort  Sons 
and  Company  as  drawees,  and  directed  them  to  charge  the  amount  "  to 
P.  Eoses  Valenti  of  Barcelona  as  per  advice."  In  neither  of  thena 
was  there  any  reference  to  the  cargo,  and,  so  far  as  appeared,  the 
amounts  were  at  once  charged  up  to  the  person  named. 

Harcke  said  that  when  the  bills  of  exchange  were  accepted  by 
Kleinwort  Sons  and  Company  bills  of  lading  covering  the  shipment  of 
110,256  kilos  of  jerked  beef  and  of  the  garlic  were  delivered  to  them 
in  consideration  of  the  acceptance  of  the  draft  for  £2,714  ISs  8d,  and 
that  bills  of  lading  for  the  165,354  kilos  of  jerked  beef  were  after- 
wards delivered  in  consideration  of  the  acceptance  of  the  draft  for 
£3,583  lis  6d.  But  the  date  of  the  latter  delivery  was  not  given,  and  it 
affirmatively  appeared  that  whenever  these  bills  of  lading  reached 
Kleinwort  Sons  and  Company  they  were  retained  "pending  the  dis- 
posal of  the  cargo."  Both  drafts  were  accepted  April  6,  and  the  bills 
of  lading  for  the  110,256  kilos  of  jerked  beef  and  for  the  garlic  were 
forwarded  to  Gelak  and  Company  on  April  9,  but  the  bills  for  the 
165,384  kilos  of  jerked  beef,  whenever  received,  never  were.  The  in- 
structions to  Gelak  and  Company  were  not  put  in  evidence,  nor  any  of 
the  correspondence  with  Valenti  or  Pages.  In  June,  Gelak  and  Com- 
pany cabled  that  the  bills  sent  to  them  had  not  been  received;  in  Sep- 
tember they  turned  up,  but  no  information  was  afforded  as  to  how  they 
came  into  Gelak  and  Company's  possession  ;  and  in  October  duplicates 
were  also  received  by  claimants  from  Gelak  and  Company,  with,  so 
far  as  disclosed,  no  accompanying  explanation.  And  Harcke's  affi- 
davits failed  to  set  forth  the  relations,  transactions  or  correspondence 
existing  and  passing  between  claimants  and  the  enemy  owuiers  of  the 
cargo.  This,  although,  as  Sir  William  Scott  said  in  The  Magnus,  1  C. 
Rob.  31,  "  the  correspondence  of  the  parties,  the  orders  for  purchase, 
and  the  mode  of  payment,  would  have  been  the  points  to  which  the 
court  would  have  looked  for  satisfaction." 

The  affidavits  alleged  that  claimants  were  wholly  unindemnified  ex- 
cept by  the  proceeds  of  the  cargo  and  the  insurance  thereon,  by  which 
the  insurers  were  subrogated  to  their  own  rights,  but  did  not  state 
whether  the  insurance  contemplated  a  war  risk,  or  why  the  bills  of 
lading  for  the  larger  portion  of  the  beef  were  retained  by  claimants  and 
not  sent  to  their  Havana  agents,  or  whether  they  retained  them  upon 
instructions  from  the  enemy  owners ;  or  whether  they  came  to  claim- 
ants from  Spain ;  nor  did  anything  appear  in  respect  of  the  interest  of 
Pages  as  consignee  for  himself,  or  in  a  representative  capacity ;  nor  of 
Valenti,  the  owner  of  the  enemy  vessel,  who  resided  at  Barcelona. 
The  evidence  of  enemy  interest  arising  on  the  face  of  the  documents 
called  on  the  asserted  neutral  owners  to  prove  beyond  question  their 


6-iO  EFFECTS    OF   WAU    AS   BETWEEN   ENEMIES.       [PART  II. 

right  and  title.  And  still,  for  all  that  appears,  the  documents  may 
Iiave  been  sent  merely  to  facilitate  delivery  to  the  agent  of  the  enemy 
owners. 

Bills  of  lading  stand  as  the  substitute  and  representative  of  the 
goods  described  therein,  and  while  quasi  negotiable  instruments,  are 
not  negotiable  in  the  full  sense  in  which  that  term  is  applied  to  bills 
and  notes.  The  transfer  of  the  bill  passes  to  the  transferee  the 
transferor's  title  to  the  goods  described,  and  the  presumption  as  to 
ownership  arising  from  the  bill  may  be  explained  or  rebutted  by  other 
evidence  showing  where  the  real  ownership  lies.  A  pledgee  to  whom 
a  bill  of  lading  is  given  as  security  gets  the  legal  title  to  the  goods  and 
the  right  of  possession  only  if  such  is  the  intention  of  the  parties,  and 
that  intention  is  open  to  explanation.  Inquiry  into  the  transaction  in 
which  the  bill  originated  is  not  precluded  because  it  came  into  the 
hands  of  persons  who  may  have  innocently  paid  value  for  it. 
Pollard  V.   Vinton,  105  U.  S.  7;  Shaw  v.  Ilailroad  Comjiany,  101  U.  S. 

f  ^^— ■ 

OOi. 

Generally'  speaking,  in  the  purchase  and  shipment  of  goods  on  bills 
of  lading  attached  to  bills  of  exchange  drawn  against  them,  the  bill  of 
exchange  is  drawn  on  the  consignee  and  purchaser,  and  sent  forward 
for  collection  through  the  banker  at  the  place  of  shipment,  who  ad- 
vances on  the  draft,  and  thereafter  realizes  on  it  through  his  corre- 
spondents, or  by  sale  as  exchange ;  or  the  banker  at  some  other  point, 
or  at  the  general  exchange  centre,  may  be  the  drawee  of  the  bill  of 
exchange  instead  of  the  consignee  or  real  owner,  the  banker  standing  in 
the  place  of  the  owner,  in  virtue  of  some  arrangement  with  his  cus- 
tomer, or  on  the  faith  of  a  running  account,  the  pledge  of  other 
securities,  or  the  customer's  personal  liability,  so  that  the  di*aft  may 
be  charged  up  at  once,  and,  at  all  events,  the  control  of  the  goods  is 
not  the  sole  reliance  of  the  banker. 

In  the  case  in  hand,  the  captors  succeeded  to  the  enemy  owners' 
rights,  and  could  have  introduced  evidence  as  to  the  real  nature  of  the 
transactions,  and  so  have  rebutted  any  presumption  in  favor  of  the 
bankers  as  purchasers  for  value,  and  although  they  did  not  do  this, 
the  question  still  remains  that  in  prize  courts  it  is  necessary  for 
claimants  to  show  the  absence  of  anything  to  impeach  the  transaction, 
and  at  least  to  disclose  fully  all  the  surrounding  circumstances.  And 
this  we  think  claimants  have  failed  to  do. 

The  right  of  capture  acts  en  the  proprietary  interest  of  the  thing 
captured  at  the  time  of  the  capture  and  is  not  affected  by  the  secret 
liens  or  private  engagements  of  parties.  Hence  the  prize  courts  have 
rejected  in  its  favor  the  lien  of  bottomry  bonds,  of  mortgages,  for  sup- 
plies, and  of  bills  of  lading.     The  assignment  of  bills  of  lading  trans- 


CHAP.  11.]  THE   "  CARLOS   F.    ROSES."  641 

fers  the  jus  ad  rem,  but  not  necessarily  the  jus  in  rem.     The  jus  in  re  \ 
or   in   rem    implies    the    absolute    dominion,  —  the    ownership    inde-  i 
pendently  of  any  particular  relation  with  another  person.     The  jus  ad 
rem  has  for  its  foundation  an  obligation  incurred  by  another.     Sand. 
Inst.  Just.  Introd.,  xlviii ;  2  Marcade,  Expl.  du  Code  Napoleon,  350 ;  2 
Bouvier  (Rawle's  Revision),  73;   The  Young  Mechanic,  2  Curtis,  404. 

Claimants  did  not  obtain  the  jus  in  rem,  and,  according  to  the 
great  weight  of  authority,  the  right  of  capture  was  superior. 

In  The  Frances,  8  Cranch,  418,  a  New  York  merchant  claimed  two 
shipments  of  goods,  one  in  consequence  of  an  advance  made  to  eneni}'- 
shippers  by  him  in  consideration  of  tlie  consignment,  and  the  other  in 
virtue  of  a  general  balance  of  account  due  to  him  from  the  ship- 
pers as  their  factor.  Both  consignments  were  at  the  risk  of  the  enemy 
shippers.  The  goods  were  condemned  as  enemy  property,  and  the 
sentence  was  affirmed.     This  court  said  : 

"The  doctrine  of  liens  seems  to  depend  chiefly  upon  the  rules  of 
jurisprudence  established  in  different   countries.     There  is  no  doubt 
but  that,  agreeably  to  the  principles  of  the  common  law  of  England,  a 
factor  has  a  lien  upon  the  goods  of  his  principal  in  his  possession,  for 
tlie  balance  of  account  due  to  him;  and  so  has  a  consignee  for  ad- 
vances made  by  him  to  the  consignor.     *     *     *     But  this  doctrine  is  ; 
unknown  in  prize  courts,  unless  in  very  peculiar  cases,  where  the  lien  ! 
is  imposed  by  a  generpj  law  of  the  mercantile  world,  independent  of  i  J!«<^ 
any  contract  between  the  parties.     Such  is  the  case  of  freight  upon  ;1   f^* 
enemies'  goods    seized  in  the  vessel  of  a  friend,  wdiich  is  alwaj'S  de-  'J 
creed  to  the  owner   of   the   vessel.     *     *     *     But  in    cases   of   liens  i 
created  by  the  mere  private  contract  of  individua,ls,  depending  upon 
the  different  laws  of  different  countries,  the  difficulties  which  an  ex-  i* 
araination  of  such  claims   would  impose  upon  the  captors,  and  even 
upon  the  prize  courts,  in  deciding  upon  them,  and  the  door  which  such 
a  doctrine  would  open  to  collusion  between  the  enemy   owners  of  the 
property  and  neutral  claimants,   have    excluded  such  cases  from  the 
consideration  of   those   courts.      *     *     *     The   principal   strength   of 
the   argument  in  favor   of  the   claimant  seemed    to    be  rested   upon 
the  position  that  the   consignor   in   this   case    could  not    have  coun- 
termanded  the    consignment    after    delivery    of    the    goods    to    the 
master  of  the  vessel ;  and  hence  it  was  inferred  that   the  captor  had  no 
right  to  intercept  the  passage  of  the  property  to  the  consignee.     This 
doctrine  would  be    well  founded,    if  the  goods  had  been   sent  to  the 
claimant  upon  his  account  and  risk,  except  in  the  case  of  insolvency. 
But  when  goods  are  sent  upon  the  account  and  risk  of  the  shipper,  the 
delivery  to  the  master  is  a  delivery  to  him  as  agent  of  the  shipper, 
not  of  the  consignee ;  and  it   is  competent  to  the  consignor,  at  any 

41 


642  EFFECTS   OF   WAR    AS   BETWEEN   ENEMIES.       [PART  IL 

time  before  actual  delivery  to  the  consignee,  to  countermand  it,  and 
thus  to  prevent  his  lien  from  attaching.  Upon  the  whole,  the  court  is 
of  opinion  that,  upon  the  reason  of  the  case,  as  well  as  iipon 
authority',  this  claim  cannot  be  supported,  and  that  the  sentence  of  the 
court  below  must  be  affirmed  with  costs." 

In  The  Mary  and  Susan,  1  Wheat.  25,  an  American  merchantman 
bound  from  Liverpool  tolS'ew  York,  was  captured  by  a  privateer  of  the 
United  States  during  the  war  of  1812.  In  her  cargo  were  certain 
goods  which  had  been  shipped  by  British  subjects  to  citizens  of  the 
United  States,  in  pursuance  of  orders  received  before  the  declaration  of 
war.  Previous  to  the  execution  of  the  orders  the  shippers  became 
embarrassed,  and  assigned  the  goods  to  certain  bankers  to  secure  ad- 
vances made  by  them,  with  a  request  to  the  consignees  to  remit  the 
amount  to  the  bankers,  wdio  also  repeated  the  same  request,  the  in- 
voices being  for  gain  and  risk  of  the  consignees,  and  stating  the  goods 
to  be  then  the  property  of  the  bankers,  and  it  was  held  that  the  goods 
having  been  purchased  and  shipped  in  pursuance  of  orders  from  the 
consignees,  the  property  was  originally  vested  in  them,  and  was  not 
divested  by  the  intermediate  assignment,  which  was  merely  intended 
to  transfer  the  right  to  the  debt  due  from  the  consignees. 

In  The  Hampton,  5  Wall.  372,  the  schooner  Hampton  and  her  cargo 
liad  been  captured,  libelled  and  condemned  as  prize  of  war.  The 
master  of  the  vessel  was  her  owner,  but  interposed  no  claim  ;  nor  did 
any  one  claim  the  cargo.  One  Brinckley  appeared  and  claimed  the 
vessel  as  mortgagee.  The  bona  fides  of  this  mortgage  was  not  dis- 
puted, nor  that  lie  was  a  loyal  citizen.  But  his  claim  was  dismissed, 
and,  the  case  having  been  certified  to  this  court,  it  was  held  that  in 
proceedings  in  prize,  and  under  the  principles  of  international  law, 
mortgages  on  vessels  captured  jure  belli  are  to  be  treated  only  as  liens 
subject  to  be  overriden  by  the  capture.     jNIr.  Justice  Miller  said : 

"The  ground  on  which  appellant  relies  is,  that  the  mortgage,  being 
a  jus  in  re  held  by  an  innocent  party,  is  something  more  than  a  mere 
lien,  and  is  protected  by  the  law  of  nations.  The  mortgagee  was  not 
in  possession  in  this  case,  and  the  real  owner  who  was  in  possession 
admits  that  his  vessel  was  in  delicto  by  failing  to  setup  any  claim  for 
her.  It  would  require  pretty  strong  authority  to  induce  us  to  import 
into  the  prize  courts  the  strict  common-law  doctrines,  which  is  some- 
times applied  to  the  relation  of  a  mortgagee  to  the  property  raort- 
giged.  It  is  certainly  much  more  in  accordance  with  the  liberal 
principles  which  govern  admiralty  courts  to  treat  mortgages  as  equity 
courts  treat  them,  as  a  mere  security  for  the  debt  for  which  they  are 
given,  and  therefore  no  more  than  a  lien  on  the  property  conveyed. 
But  it  is  unnecessary  to  examine  this  question  minutely,  because  an 


CHAP,  ir.]  THE  "CARLOS   F.   ROSES."  643 

obvious  principle  of  necessity  must  forbid  a  prize  court  from  recog- 
nizing the  doctrine  here  contended  for.  If  it  were  once  admitted  in 
these  courts,  there  would  be  an  end  of  all  prize  condemnation.  As 
soon  as  a  war  was  threatened,  the  owners  of  vessels  and  cargoes  which 
might  be  so  situated  as  to  be  subject  to  capture,  would  only  have  to  . 
raise  a  sufficient  sum  of  money  ou  them,  by  bona  Jide  mortgages,  to  in-  i 
demnify  them  in  case  of  such  capture.  If  the  vessel  or  cargo  was 
seized,  the  owner  need  not  appear,  because  he  would  be  indifferent,  hav- 
ing the  value  of  his  property  in  his  hand,  already.  The  mortgagees 
having  an  honest  mortgage  which  he  could  establish  in  a  court  of 
prize,  would  either  have  the  property  restored  to  him  or  get  the  amount 
of  the  mortgage  out  of  the  proceeds  of  the  sale.  The  only  risk  run  by 
enemy  vessels  or  cargoes  on  the  high  seas,  or  by  neutrals  engaged  in 
an  effort  to  break  the  blockade,  would  be  tlie  costs  and  expenses  of 
cai)ture  and  condemnation,  a  risk  too  unimportant  to  be  of  any  value 
to  a  belligerent  in  reducing  his  opponent  to  terms.  The  principle 
which  thus  abolishes  the  entire  value  of  prize  capture  on  the  high  seas, 
and  deprives  blockades  of  all  danger  to  parties  disposed  to  break  them, 
cannot  be  recognized  as  a  rule  of  prize  courts." 

In  The  Buttle,  6  Wall.  498,  the  steamer  Battle  and  cargo  were  cap- 
tured on  the  high  seas  as  prize  of  war,  brought  into  port  and  con- 
demned, for  breach  of  blockade  and  also  as  enemy  property.  Two 
claims  were  set  up  against  the  steamer  in  the  court  below,  one  for  sup- 
plies, and  another  for  materials  furnished  and  for  work  and  labor  in 
building  a  cabin  on  the  boat.  These  claims  were  dismissed,  and  the 
decree  affirmed  by  this  court,  ]\Ir.  Justice  Nelson  delivering  the 
opinion,  saying :  ''  The  principle  is  too  well  settled  that  capture  as 
prize  of  war,  jure  belli,  overrides  all  previous  liens,  to  require  examina- 
tion." 

Such  is  the  rule  in  the  British  prize  courts.  The  Tobago,  o  C.  Rob. 
218  ;   The  Marianna,  6  C.  Rob.  24;   The  Lin,  Spinks  Prize  Cases,  26. 

The  Tobago  was  a  case  of  claim  to  a  captured  French  vessel,  made  on 
behalf  of  a  British  jnerchant  as  the  holder  of  a  bottomry  bond 
executed  and  delivered  to  him  by  the  master  of  the  ship  before  the 
commencement  of  hostilities  between  Great  Britain  and  France.  Sir 
William  Scott  said : 

"  The  integrity  of  this  transaction  is  not  impeached,  but  I  am  called 
upon  to  consider  whether  the  court  can,  consistently  with  the  prin- 
ciples of  law  that  govern  its  practice,  afford  relief.  It  is  the  case  of  a 
bottomry  bond,  given  fairly  in  times  of  peace,  without  any  view  of 
infringing  the  rights  of  war,  to  relieve  a  ship  in  distress.  *  *  * 
But  can  the  court  recognize  bonds  of  this  kind  as  titles  of  property,  so 
as   to   give    persons    a  right    to   stand    in    judgment,    and    demand 


644  EFFECTS    OF   WAR    AS    BETWEEN   ENEMIES.       [PART  II. 

restitution  of  such  interests  in  a  court  of  prize  9  *  *  ^>  The  person 
advancing  money  on  bonds  of  this  nature,  acquires,  by  that  act,  no 
property  in  the  vessel ;  he  acquired  the  jus  in  rem,  but  not  the  jus  in 
re  until  it  has  been  converted  and  appropriated  by  the  final  process  of 
a  court  of  justice.  *  *  *  But  it  is  said  that  the  captor  takes  cum 
onere,  and,  therefore,  that  this  obligation  would  devolve  upon  him. 
That  he  is  held  to  take  cum  onere  is  undoubtedly  true,  as  a  rule  which 
is  to  be  understood  to  apply  where  the  onus  is  immediately  and  visibly 
incumbent  upon  it.  A  captor  who  takes  the  cargo  of  an  enemy  on 
board  the  ship  of  a  friend,  takes  it  liable  to  the  freight  due  to  the 
owner  of  the  ship  ;  because  the  owner  of  the  ship  has  the  cargo  in  his 
possession,  subject  to  that  demand  by  the  general  law,  independent  of 
all  contract.  *  *  *  But  it  is  a  proposition  of  much  wider  extent, 
which  affirms  that  a  mere  right  of  action  is  entitled  to  the  same  favor- 
able consideration  in  its  transfer  from  a  neutral  to  a  captor.  It  is 
very  obvious  that  claims  of  such  a  nature  may  be  framed  as  that  no 
powers  belonging  to  this  court  can  enable  it  to  examine  them  with 
effect.  They  are  private  contracts,  passing  between  parties  who  may 
have  an  interest  in  colluding ;  the  captor  has  no  access  whatever  to 
the  original  private  understanding  of  the  parties  in  forming  such  con- 
tracts;  and  it  is,  therefore,  unfit  that  he  should  be  affected  by  them. 
His  rights  of  capture  act  upon  the  property,  without  regard  to  secret 
liens  possessed  by  third  parties.  *  *  *  I  am  of  opinion  that 
there  is  no  instance  in  which  the  court  has  recognized  bonds  of  this 
kind  as  titles  of  property,  and  that  they  are  not  entitled  to  be 
recognized  as  such  in  the  prize  courts," 

In  The  Marlanna,  the  vessel  had  been  sold  at  Buenos  Ayres  by 
American  owners  to  a  Spanish  merchant ;  the  purchase-money,  how- 
ever, had  not  been  paid  in  full,  but  was  to  be  satisfied  out  of  the 
proceeds  of  a  quantity  of  tallow  on  board  the  vessel  for  sale,  consigned 
to  the  agents  of  the  American  vendors  at  London.  The  vessel  was 
seized  on  her  voyage  to  England,  documented  as  belonging  to  a  Span- 
ish merchant,  and  sailing  under  the  flag  and  pass  of  Spain.  The 
former  American  proprietors  made  claim  to  the  cargo,  but  the  claim 
was  disallowed  because  the  claimants'  interest  was  not  sufficient  to 
support  it  ;  and  the  court  said : 

"  Captors  are  supposed  to  lay  their  hands  on  the  gross  tangible 
property,  on  which  there  may  be  many  just  claims  outstanding, 
between  other  parties,  which  can  have  no  operation  as  to  them.  If 
such  a  rule  did  not  exist,  it  would  be  quite  impossible  for  captors  to 
know  upon  what  grounds  they  were  proceeding  to  make  any  seizure. 
Tlie  fairest  and  most  creditable  documents,  declaring  the  property  to 
belong  to  the   enemy,    would  only  serve  to   mislead  them,   if  such 


CHAP.  II.]  THE   "  CARLOS   F.   ROSES."  645 

documents  were  liable  to  be  overruled  by  liens  which  could  not  in  any 
manner  come  to  their  knowledge.  It  would  be  equally  impossible  for 
the  court,  wliich  has  to  decide  upon  the  question  of  property,  to 
admit  such  considerations.  The  doctrine  of  liens  depends  very  much 
on  the  particular  rules  of  jurisprudence  which  prevail  in  different 
counti'ies.  To  decide  judicially  on  such  claims  would  require  of  the 
court  a  perfect  knowledge  of  the  law  of  covenant,  and  the  application 
of  that  law  in  all  countries,  under  all  the  diversities  in  which  that  law 
exists.  From  necessity,  therefore,  the  court  would  be  obliged  to  shut 
the  door  against  such  discussions  and  to  decide  on  the  simple  title  of 
property,  with  scarcely  any  exceptions.  *  *  *  As  to  the  title  of  ' 
property  in  the  goods,  which  are  said  to  have  been  going  as  the  funds 
out  of  which  the  payment  for  the  ship  was  to  have  been  made.  That 
they  were  going  for  the  payment  of  a  debt  will  not  alter  the  property ; 
there  must  be  something  more.  Even  if  bills  of  lading  are  delivered, 
that  circumstance  will  not  be  sufficient,  unless  accompanied  with  an  ■ 
understanding  that  he  who  holds  the  bill  of  lading  is  to  bear  the  risk  |j 
of  the  goods  as  to  the  voyage,  and  as  to  the  market  to  which  they  are 
consigned;  otherwise,  though  the  security  may  avail  pro  tcuito,  it 
cannot  be  held  to  work  any  change  in  the  property." 

These  cases  were  cited  by  Dr.  Lushington  in  The  Ida  as  settling  the 
law.  In  that  case  claim  was  made  by  a  neutral  merchant  to  a  cargo 
of  coffee  which  had  been  consigned  to  him  by  an  enemy  on  the  credit 
of  certain  advances,  as  security  for  payment  of  which  bills  of  lading 
covering  the  cargo  had  been  delivered  to  him.  But  the  court  declined 
to  recognize  the  lien,  and  condemned  the  cargo  as  enemy  property. 
Dr.  Lushington  referred  to  The  San  Jose  Indiano  and  Cargo,  2 
Gallison,  267,  and  subscribed  to  what  was  there  said  by  Mr.  Justice 
Story,  but  thought  his  remarks  inapplicable  to  the  case  in  hand. 

The  case  referred  to  was  affirmed  by  this  court.  1  Wheat.  208. 
Goods  were  shipped  by  Dyson,  Brothers  and  Company  of  Liverpool 
on  board  a  neutral  ship  bound  to  Rio  de  Janeiro,  which  was  captured 
and  brought  into  the  United  States  for  adjudication.  The  invoice 
was  headed :  "  Consigned  to  j\[essrs.  Dyson,  Brothers  and  Finnic,  by 
order  and  for  account  of  J.  Lizaur."  In  a  letter  accompanying  the  bill 
of  lading  and  invoice,  Dyson,  Brothers  and  Company  wrote  Dyson, 
Brothers  and  Finnie  :  "  For  Mr.  Lizaur  we  open  an  account  in  our 
books  here,  and  debit  him,  &c.  We  cannot  yet  ascertain  the  proceeds 
of  his  hides,  &c.,  but  find  his  order  for  goods  will  far  exceed  the 
amount  of  these  shipments,  therefore  we  consign  the  whole  to  you, 
that  you  may  come  to  a  proper  understanding  with  him."  The  two 
houses  consisted  of  the  same  persons.  It  was  held  that  the  goods 
were,  during  their  transit,  the  property  and  at  the  risk  of  the  enemy 


646  EFFECTS    OF   WAR    AS   BETWEEN    ENEMIES.       [PART  II. 

shippers,  and  therefore  subject  to  condemnation.  Lizaurs  claim  was 
rejected  although  D\-son,  Brothers  and  Company  had  the  proceeds  of 
his  hides  in  their  hands. 

The  Lyncliburrj,  Blatchford's  Prize  Cases,  57,  and  The  Amy  War- 
70'lck,  2  Sprague,  150,  are  cited  on  behalf  of  claimants,  but,  as  we  read 
them,  they  do  not  sustain  their  contention.  The  schooner  Li/nclihttrg 
with  a  cargo  of  coffee  had  been  libelled  during  the  civil  war  as  enemy 
property,  and  also  for  an  attempt  to  violate  blockade.  Brown 
Brothers  and  Company,  loyal  citizens,  intervened  as  claimants  of  2,045 
bags  of  coffee,  part  of  the  cargo.  They  alleged  that  they  had  made  an 
advance  of  credit  to  31axwell,  Wright  and  Company,  neutral  mer- 
chants of  Rio  de  Janeiro,  for  the  purchase  of  the  coffee,  under  which 
credit  Maxwell,  Wright  and  Company  drew  drafts  on  Brown  Brothers 
and  Company  for  £6,000,  on  the  condition  expressed  therein  that 
the  coffee  purchased  by  claimants  should  be  held  until  their 
advances  were  reimbursed  thereon.  It  was  admitted  by  the  United 
States  attorney  that  1,541  bags  of  the  coiTee  should  be  released 
to  Brown  Brothers  and  Company,  and  that  was  done.  As  to 
the  remaining  504  bags  embraced  in  the  general  claim  of  Browu 
Brothers  and  Company,  in  which  Wortham  and  Company,  of  Virginia, 
asserted  an  interest,  it  was  held  by  the  court  that  as  no  proof  was 
given  by  claimants  that  the  value  of  1,541  bags  restored  to  them  was 
not  equivalent  to  the  sum  of  their  advances  used  in  purchasing  the 
whole  2,045  bags,  the  reasonable  presumption  was  that  the  restoration 
satisfied  the  entire  advance.  And  Judge  Betts  said  :  "  The  claim  to 
an  absolute  ownership  of  the  2,045  bags  was  placed  before  the  court  in 
the  oral  argument,  and  in  the  written  points  filed  in  the  cause  by  the 
counsel  for  the  claimants  upon  the  proposition  of  law  that  a  bill  of 
lading,  transmitted  to  them  by  the  shipper  to  cover  advances,  passed 
to  them  the  title  to  the  cargo  purchased  therewith.  If  this  doctrine 
be  correct  as  to  mere  commercial  transactions,  it  does  not  prevail  in 
prize  courts,  in  derogation  of  the  rights  of  captors,  when  the  interest 
of  the  claimants  is  only  a  debt,  although  supported  by  liens  equitable 
and  tacit,  or  legal  and  positive,  even  of  the  character  of  bottomry 
bonds,  when  not  signified  on  the  ship's  papers  at  the  time  of  her  capture. 
The  Frances,  8  Cranch,  418;  The  Tobcujo,  5  C.  Rob.  218;  The 
Marianna,  6  C.  Rob.  24.  Here  the  vessel  was  an  enemy  bottom  ;  the 
bill  of  lading  consigned  the  cargo  to  order  or  assigns,  at  large,  at  an 
enemy's  port,  and,  on  the  surrender  of  the  principal  portion  of  the 
consignment  to  the  claimants,  no  other  evidence  was  given  in  estab- 
lishing the  facts  that  the  remainder  of  the  shipment  was  owned  by 
them,  or  yet  stood  under  hypothecation  to  them  on  the  bill  of  lading." 
The  504  bags  were  condemned,  "  because,  by  intendment  of  law,  that 


CHAP.  II.]  THE    "  CARLOS    F.    ROSES."  647 

portion  belonged  to  Wortham  and  Companj^,  and  was  not  shown  by 
the  proofs  to  be  exempt  from  capture  as  prize." 

In  The  Amy  Warwick,  J.  L.  Phipps  and  Company  of  New  York, 
British  subjects,  purchased  4,700  bags  of  coffee,  part  of  the  cargo  of  an 
enemy  vessel,  which  they  had  purchased  through  Phipps  Brothers  and 
Co.,  their  firm  at  Rio,  with  funds  of  an  enemy  firm,  and  £2,000  of 
their  own  money  by  draft  on  Phipps  and  Co.,  their  firm  at  Liverpool. 
They  took  from  the  master  a  bill  of  lading  which  stated  that  Phipps 
Brothers  and  Company  were  the  shippers  of  this  coffee,  and  that  it 
was  to  be  delivered  to  their  order.  Indorsed  on  the  bill  of  lading  was 
a  statement  declaring  that  a  portion  of  the  coffee  was  the  property  of 
British  subjects.  Phipps  Brothers  and  Company  indorsed  the  bill  of 
lading  over  to  J.  L.  Phipps  and  Co.  They  also  delivered  to  the 
master  another  part  of  the  bill  of  lading,  an  invoice  of  the  coffee,  and  a 
letter  of  advice  to  be  conveyed  to  the  firm  in  New  York.  This  letter 
stated  that  the  coffee  was  shipped  for  account  of  merchants  at 
Richmond,  Virginia,  and  that  a  bill  of  lading  would  have  been  sent 
to  them  had  it  not  been  deemed  advisable  by  reason  of  the  unsettled 
state  of  political  affairs,  for  the  better  protection  of  the  property,  and 
to  prevent  privateers  from  molesting  the  vessel,  to  have  it  certified  on 
the  bill  of  lading  that  a  portion  of  the  coffee  was  British  property,  and 
that  this  referred  to  the  portion  against  which  they  had  valued  on 
Liverpool.  It  was  held  that  the  facts  led  plainly  to  the  conclusion 
that  claimants  ought  to  be  repaid  the  amount  they  had  expended  from 
their  own  funds  in  the  purchase  of  the  coffee  and  that  the  residue  of 
the  proceeds  should  be  condemned.  It  was  said  that  as  the  coffee  was 
purchased  at  Rio  by  the  claimants,  and  shipped  by  them  on  board  the 
vessel  under  a  bill  of  lading  by  which  the  master  was  bound  to 
deliver  it  to  their  order,  and  they  ordered  it  to  be  delivered  to  J.  L. 
Phipps  and  Co.,  that  is,  to  themselves,  they  were  the  legal  owners  of 
the  property,  and  could  hardly  be  said  to  have  a  lien  upon  it.  Their 
real  character  was  that  of  trustees  holding  the  legal  title  and 
possession  with  a  right  of  retention  until  their  advances  should  be 
paid.  The  doctrine  of  liens  was  considered,  and  The  Frances,  The 
Tobago^  The  Marianna  and  other  cases  examined.  Judge  Sprague 
was  of  opinion  that  the  rule  in  such  cases  ought  not  to  be  that 
which  stops  at  the  mere  legal  title,  but  that  which  ascertains  and  deals 
with  the  real  beneficial  interest,  "for,  if  the  court  were  never  to  look, 
beyond  the  legal  title,  the  result  would  be  that  when  such  title  is  heldj 
by  an  enemy  in  trust  for  a  neutral,  the  latter  loses  his  whole 
property ;  but,  when  the  legal  title  is  in  a  neutral  in  trust  for  an 
enemy,  the  property  is  restored  to  the  neutral,  not  for  his  benefit, 
but   merely   as    a   conduit    through    which    it    is  to   be    conveyed   to 


648  EFFECTS    OF    WAR    AS    BETWEEN   ENEMIES.       [PART  IL 

the  enemy.  To  refuse  to  look  beyond  the  legal  title  is  to  close  our 
eyes  for  the  benefit  of  the  enemy.  It  would  enable  him  always  to 
protect  his  property  by  simply  putting  it  in  the  name  of  a  neutral 
trustee." 

We  agree  with  counsel  for  the  United  States  that,  notwithstanding 
the  indorsement  of  Gibernau  and  Company  on  the  bills  of  lading,  the 
proof  of  a  neutral  title  was  not  sufficient.  Even  if  when  the  neutral 
interest  is  adequately  proven  to  be  bona  fide,  the  claim  of  the  captors 
may  be  required  to  yield,  yet  in  this  case  the  belligerent  right 
overrides  the  neutral  claim,  which  must  be  regarded  merely  as  a 
debt,  and  the  assignment  as  a  cover  to  an  enemy  interest. 

Something  was  said  in  argument  in  relation  to  the  character  of  the 
cargo.  It  is  true  that  by  the  modem  law  of  nations,  provisions,  while 
not  generally  deemed  contraband,  may  become  so,  although  belonging 
to  a  neutral,  on  account  of  the  particular  situation  of  the  war,  or  on 
account  of  their  destination,  as,  if  destined  for  military  use,  for  the 
army  or  navy  of  the  enemy,  or  ports  of  naval  or  military  equipment. 
The  Benito  Estenger,  176  U.  S.  568  ;  The  Panama,  176X1.  S.ooo  ;  The 
Feterhoff,  5  Wall.  28;  Grotius,  De  Jure  Belli  et  Pacis,  lib.  III.,  c.  1, 
§  5 ;  Hall,  §  236. 

Doubtless,  in  this  instance,  the  concentration  and  accumulation  of 
provisions  at  Havana  might  fairly  be  considered  a  necessary  part 
of  Spanish  military  operations,  immbiente  hello,  and  these  particular 
provisions  were  perhaps  especially  appropriate  for  Spanish  military 
use  ;  but  while  these  features  may  well  enough  be  adverted  to  in 
connection  with  all  the  other  facts  and  circumstances,  we  do  not  place 
our  decision  upon  them. 

We  are  of  opinion  that  a  valid  transfer  of  title  to  this  enemy 
property  to  claimants  was  not  satisfactorily  made  out,  and  that 

The  decree  below  must  be  reserved,  and  a  decree  of  condemnation 
directed  and  be  entered,  and  it  is  so  ordered.^ 

1  Dissenting  opinion  of  Mr.  Shiras,  in  wliicli  Mr.  .Justice  Brewer  concurrecl,  omitted. 

In  The  Siren,  1808,  7  Wall.  152,  it  was  held  tliat  a  claim  for  damages  exists  against 
a  United  States  vessel  guilty  of  a  maritime  tort,  as  in  the  case  of  a  merchant  vessel ; 
that  such  claim  may  not  be  enforced  against  the  United  States  as  a  defendant,  but  if 
the  United  States  enters  the  court  as  plaintiff,  the  court  will  take  jurisdiction  to 
the  extent  of  the  value  of  the  property,  but  no  judgment  lies  against  the  United 
States  beyond  the  value  of  the  property  or  for  costs.  Where,  therefore,  a  prize  of  the 
United  States  ran  into  and  sank  another  vessel,  it  was  held  that  tlie  owners  of  sunken 
vessel  and  its  cargo  could  intervene  in  prize  proceedings  and  have  tlieir  damages 
assessed  and  paid  out  of  the  proceeds  before  distribution  to  the  captors.  —  Ed. 


CHAP.  II.]  THE  "  SANTA   CRUZ."  649 


Section  36. — Recapture — Rescue. 


THE   "SANTA   CRUZ." 

High   Court   of   Admiralty,  1798. 

(1   C.   Robinson,  49.) 

This  was  the  case  of  a  Portuguese  vesssel  taken  by  the  French, 
August  1,  1796,  and  retaken  by  EngUsh  cruisers,  on  the  28th,  after 
being  a  month  in  the  possession  of  the  enemy.^ 

Judgment, — Sir  W.  Scott  : — 

u  *  *  *  jj-i  the  arguments  of  the  counsel,  I  have  heard  much  of 
the  rules  which  the  law  of  nations  prescribes  on  recapture,  respect- 
ing the  time  when  property  vests  in  the  captor;  and  it  certainly  is 
a  question  of  much  curiosity  to  inquire  what  is  the  true  rule  on  this 
subject ;  when  I  say  the  true  rule,  I  mean  only  the  rule  to  which 
civilized  nations,  attending  to  just  principles,  ought  to  adhere ;  for 
the  moment  you  admit,  as  admitted  it  must  be,  that  the  practice  of 
nations  is  various,  you  admit  there  is  no  rule  operating  with  the 
proper  force  and  authority  of  a  general  rule. 

"  It  may  be  fit  there  should  be  some  rule,  and  it  might  be  either 
the  rule  of  immediate  possession  or  the  rule  of  pernoctation  and 
twenty-four  hours'  possession ;  or  it  might  be  the  rule  of  bringing 
infra  prcesicUa  ;  or  it  might  be  a  rule  requiring  an  actual  sentence 
of  condemnation ;  either  of  these  rules  might  be  sufficient  for 
general  practical  convenience,  although  in  theory  perhaps  one 
might  appear  more  just  than  another ;  but  the  fact  is,  there  is  no 
such  rule  of  practice ;  nations  concur  in  principle,  indeed,  so  far  as 
require  firm  and  secure  possession ;  but  their  rules  of  evidence  re- 
specting the  possession  are  so  discordant  and  lead  to  such  opposite 
conclusions  that  the  mere  unity  of  principle  forms  no  uniform  rule 
to  regulate  the  general  practice.  But  were  the  public  opinion  of 
European  States  more  distinctly  agreed  on  any  principle  as  fit  to 
form  the  rule  of  the  law  of  nations  on  this  subject,  it  by  no  means 
follows  that  any  one  nation  would  lie  under  an  obligation  to  ob- 
serve it. 

"That  obligation  could  arise  only  from  a  reciprocity  of  practice  in 
other  nations ;  for  from  the  very  circumstance  of  the  prevalence  of 

1  Statement  abridged  and  only  part  of  the  judgment  given.  —  Ed. 


650  EFFECTS    OF   WAR    AS    BETWEEN    ENEMIES,       [PART  11. 

a  different  rule  among  other  nations,  it  would  become  not  only  law- 
ful, but  necessary  to  that  one  nation  to  pursue  a  different  conduct : 
for  instance,  were  there  a  rule  prevailing  among  other  nations  that 
the  immediate  possession  and  the  very  act  of  capture  should  divest 
the  property  from  the  first  owner,  it  would  be  absurd  in  Great 
Britain  to  act  towards  them  on  a  more  extended  principle  ;  and  to 
lay  it  down  as  a  general  rule,  that  a  bringing  infra  prmsidia., 
though  probably  the  true  rule  should  in  all  cases  of  recaj)ture  be 
deemed  necessary  to  divest  the  original  proprietor  of  his  rights ;  for 
the  effect  of  adhering  to  such  a  rule  would  be  gross  injustice  to 
British  subjects.     *    *     * 

"  If  I  am  asked,  under  the  knov/n  diversity  of  practice  on  this 
subject,  what  is  the  proper  rule  for  a  State  to  apply  to  the  recapt- 
ured property  of  its  allies,  I  should  answer  that  the  liberal  and  ra- 
tional proceeding  would  be,  to  apply  in  the  first  instance  the  rule  of 
that  country  to  which  the  recaptured  property  belongs.     *     *    * 

"  If  there  should  exist  a  country  in  which  no  rule  prevails,  the 
recapturing  country  must  then  of  necessity  apply  its  own  rule  and 
rest  on  the  presumption  that  that  rule  will  be  adopted  and  adminis- 
tered in  the  future  practice  of  its  allies.     *     *     * 

I  understand  [the  law  of  England]  to  be  clearly  this:  That  the 
maritime  law  of  England,  having  adopted  a  most  liberal  rule  of 
restitution  on  salvage,  with  respect  to  the  recaptured  property  of 
its  own  subjects,  gives  the  benefit  of  that  rule  to  its  allies,  till  it 
appears  that  they  act  towards  British  property  on  a  less  liberal  prin- 
ciple. In  such  a  case  it  adopts  their  rule  and  treats  them  according 
to  their  own  measure  of  justice.^ 


THE    ''CARLOTTA." 
High    Court   of    Admiralty,  1803. 

(5   C.    Robinson,    5i.) 

This  was  a  question  of  salvage,  on  the  recapture  of  a  Spanish 
ship  and  cargo  from  a  French  cruiser. 

Judgment. — Sir  W.  Scott:  — 

"  The  question  now  to  be  decided  is,  whether  salvage  is  due  on 
the  neutral  property  in  tliis  ship  which  has  been  recaptured  out  of 

1  As  Portugal  had  adopted  tlie  twenty-four-hour  rule,  tliat  principle  was  applied 
to  those  ships  recaptured  during  the  time  that  rule  prevailed  in  Portugal,  and  the 
rate  of  salvage  decreed  was  the  I'ortugese  rate,  one-eighth  to  ships  of  war  and  one- 
fifth  to  privateers.     The  English  rule  allowed  one-sixth  to  privateers.  —  Ed. 


CHAP.  II.]  THE   "  CARLOTTA."  651 

the  possession  of  the  enemy.  It  certainly  has  not  been  the  practice 
of  this  court  to  decree  salvage  under  such  circumstances  generally  ; 
but,  in  consequence  of  the  violent  conduct  of  France  during  the  last 
war,  it  was  thought  not  unreasonable  on  the  part  of  neutral  mer- 
chants themselves,  that  salvage  should  be  allowed.     *    *     * 

"  I  am,  therefore,  not  disposed  to  hold  generally  that  neutral 
property  recaptured  from  French  cruisers  shall  be  subject  to  sal- 
vage. The  rule,  so  far  as  it  can  be  considered  a  general  rule,  is 
rather  to  be  laid  down  the  other  way.  At  the  same  time,  if  any 
edict  can  be  appealed  to  or  any  fact  established,  by  which  it  can  be 
shewn  that  the  property  would  have  been  exposed  to  condemnation 
in  the  courts  of  France,  I  shall  hold  that  to  be  sufficient  ground  to 
induce  me  to  pronounce  for  salvage  in  that  particular  case.  With 
regard  to  the  precedent  of  the  Jonge  Lamhert  (5  C.  Rob.,  54,  note),  I 
think  I  am  warranted  to  consider  the  authority  of  that  case  as  in  a 
great  measure  done  away  by  the  subsequent  decision  of  the  Lords 
in  the  late  war,  in  which  they  have  repeatedly  pronounced  for  sal- 
vage on  the  recapture  of  neutral  property.  In  departing  from  the 
old  rule  they  have  in  some  degree  disclaimed  the  principle ;  and,  I 
think,  with  great  propriety,  as  far  as  it  could  be  considered  as  an 
universal  principle,  governing  the  practice  of  our  prize  courts  in  all 
possible  cases,  without  any  possible  exception.  In  the  present  in- 
stance there  does  not  appear  to  me  to  be  any  grounds  on  which  it 
can  be  supposed  that  this  property  would  have  been  condemned, 
merely  because  it  came  out  of  the  hands  of  a  British  privateer,  or 
because  the  original  voyage  had  been  the  colony  of  Spain  to 
London.  No  edict  has  been  produced  from  the  French  code  to  shew 
that  this  property  would  have  been  subject  to  any  such  penalty  on 
either  of  those  accounts,  in  the  prize  courts  of  France.  The  ex- 
penses of  the  recaptors  must  be  fully  paid ;  but  I  shall  not  pro- 
nounce salvage  to  be  due."  ^ 

1  For  an  account  of  the  laws  of  different  countries  on  the  subject  of  recapture  and 
salvage,  see  Dana's  Wheaton,  466-472. —  Ed. 


652  EFFECTS   OF   WAR   AS   BETWEEN   ENEMIES.       [PART  II. 

THE    "MARY  FORD." 
Supreme   Court   of   the   United   States,  1796. 

(3   Dallas,    188.) 

The  Maty  Ford  was  a  British  vessel,  captured  in  1790  by  a  French 
squadron  and  abandoned  at  sea.  The  Geon/e,  an  American  vessel, 
took  possession  of  the  3Iari/  Ford,  and  bronght  it  into  Boston  har- 
bor, to  save  the  ship  and  cargo,  and  then  libelled  it  for  salvage  in  the 
District  Court.  From  a  judgment  in  favor  of  the  libellants,  an  appeal 
was  taken  to  the  Supreme  Court. ■^ 

By  the  Court:  We  are  unamimously  of  opinion,  that  the  District 
Court  had  jurisdiction  upon  the  subject  of  salvage  ;  and  that,  conse- 
quently, they  must  have  a  power  of  determining  to  whom  the  residue 
of  the  property  ought  to  be  delivered. 

In  determining  the  question  of  property,  we  think  that,  immediately 
1,  on  the  capture,  the  captors  acquired  such  a  right,  as  no  neutral  nation 
could  justly  impugn  or  destroy  ;  and,  consequently,  we  cannot  say  that 
the  abandonment  of  the  Mary  Ford,  under  the  circumstances  of  this 
case,  revived  and  restored  the  interest  of  the  original  British 
proprietors. 

Some  doubts  have  been  entertained  by  the  court,  whether  on  the 
principles  of  an  abandonment  by  the  French  possessors,  the  whole 
property  ought  not  to  have  been  decreed  to  the  American  libellants,  or, 
at  least,  a  greater  portion  of  it  by  way  of  salvage ;  but  as  they  have 
not  appealed  from  the  decision  of  the  inferior  court,  we  cannot  now 
take  notice  of  their  interest  in  the  cause. 

Upon  the  whole,  let  the  decree  be  affirmed.^ 

1  Tliis  statement  is  substituted  for  that  of  tlie  original  report.  — Ed. 

2  In  Hopner  v.  Applcbij,  1828,  5  Mason,  71,  75,  Story,  J.,  said  :  "  Some  principles  are 
extremely  clear,  and  indeed  are  so  well  settled  that  notliing  more  is  necessary  to  com- 
mand approbation  than  a  simple  enunciation  of  them.  Neutral  nations  are  bound 
equally  by  their  duty  and  their  interest  to  consider  the  existing  state  of  things  be- 
tween belligerents  as  rightful.     The  riglit  of  capture  by  tlie  law  of  war  cannot  l)e  dis- 

^puted,  and  the  lawfulness  of  tlie  possession  thereby  acquired  cannot  be  inquired  into 
by  the  tribunals  of  a  neutral  nation,  with  the  single  exception  of  cases  where  the  cap- 

'ture  itself  is  an  infringement  of  the  jurisdiction  or  rights  of  the  neutral  nation  itself. 
In  all  other  cases,  the  question  of  prize  or  no  prize  exclusively  belongs  to  the 
cognizance  of  the  courts  of  the  capturing  power.  The  possession  of  the  captors  is  to  be 
deemed  a  possession  honaJUle,  and  inviolable;  and  as  was  said  by  the  Supreme  Court 
in  tiie  case  of  The  Mari/  Ford,  3  Dall.  R.  188,  198,  immediately  upon  the  capture  the 
captors  acquire  such  a  rigiit  as  no  neutral  nation  can  justly  impugn  or  destroy.  The 
Josefit  Sefpinda,  5  Wheaton  R.  338,  357." 

And  in  Booth  v.  L'Esperanza,  1798,  Bee,  93  (3  Fed.  Cas.  885),  Bee,  J.,  held,  citing 


CHAP.  II.]  THE    "  BEAVER."  653 

THE  "BEAVER." 

High  Court  of  Admiralty,  1801. 

(3  C.  Robinson,  292.) 

This  was  a  case  of  a  British  merchant  ship,  taken  with  a  cargo  of 
wine  in  sight  of  the  English  coast,  by  a  French  privateer;  when  all 
the  crew,  except  the  master  and  one  boy  had  been  taken  out:  the 
master  seeing  an  opportunity  rose  upon  five  Frenchmen  that  had  been 
put  on  board,  and  by  knocking  down  the  prize  master,  and  possessing 
himself  of  his  pistols,  the  only  firearms  on  board,  succeeded  in  driving 
the  rest  of  the  crew  down  below,  and  gained  possession  of  the  vessel. 
After  he  had  steered  a  considerable  time  towards  the  English  coast,  a 
storm  came  on,  in  which  the  vessel  was  nearly  lost :  a  British  frigate 
coming  in  sight,  the  master  obtained  the  assistance  of  twelve  men,  by 
whose  aid  he  kept  possession  till  it  was  thought  she  must  inevitably 
jierish:  they  then  all  returned  to  the  frigate;  but  the  storm  afterwards 
abating,  tlie  master  requested  that  he  might  be  permitted  to  go  again 
to  the  ship  to  try  if  he  could  not  save  her ;  and  with  the  assistance  of 
a  boat's  crew  from  the  frigate,  he  succeeded  and  brought  the  vessel 
safe  into  port. 

Judgment.  —  Sir  W.  Scott.  —  This  is  a  case  of  verj^  peculiar  merit 
on  the  part  of  the  original  salvors,  the  master  and  the  boy,  by  whose 
distinguished  gallantry  the  property  was  rescued  out  of  the  hands  of 
the  enemy.  It  is  impossible  to  accede  to  the  representation  that  has 
been  given  on  the  part  of  the  King's  ship,  that  the  vessel  is  to  be  con- 
sidered as  a  derelict  saved  by  their  exertions.  The  vessel  itself  was 
never  in  the  state  of  a  derelict  —  the  eye  of  the  master  was  constantly 
upon  it ;  and  if  I  may  so  say,  kept  a  possession  of  it  for  the  whole  time, 
under  the  spes  ac  animus  reciqjerandi.  The  actual  recovery  is  attribu- 
table to  him  ;  he  and  the  boy  were  the  only  parties,  in  the  first  service  ; 
and  his  advice,  seconded  by  his  example,  it  was,  which  operated  most 
effectually  to  the  final  preservation  of  the  vessel :  from  the  beginning  to 

The  Mai-y  Ford,  supra,  that  a  vessel  in  distress,  met  with  at  sea,  and  brought  into  the 
port  of  a  neutral  power,  must  he  restored',  after  payment  of  salvage,  to  those  who 
were  in  possession  of  her  wlien  she  was  met. 

And  in  L'lnvincible,  1816,  1  Wheat.  238,  258,  Mr.  Justice  Johnson  cites  and  explains 
the  case  in  the  text,  holding  that  the  courts  of  this  country  have  no  jurisdiction  to 
redress  any  supposed  torts  committed  on  the  high  seas  upon  the  property  of  its  citizens 
by  a  cruiser  regularly  commissioned  by  a  foreign  and  friendly  power,  except  where 
such  cruiser  has  been  fitted  out  in  violation  of  our  neutrality.  —  Ed. 


654  EFFECTS   OF   WAR   AS   BETWEEN   ENEMIES.       [PART  II. 

the  end,  he  is  to  be  considered  as  most  materially  active  in  the  whole 
affair:  he  is  the  person  whose  service  must  stand  highest  in  the  esti- 
mation of  the  court ;  and  I  do  not  recollect  to  have  seen  any  case  of 
salvage  in  which  personal  merit  of  that  species  presented  itself  more 
strongly  for  encouragement  and  reward.  On  this  part  of  the  case  I 
shall  decree  at  least  the  usual  salvage  of  a  sixth. 

^Vith  respect  to  the  King's  ship,  I  cannot  admit  the  propriety  of  the 
inflamed  representation  which  has  been  offered  of  their  services  :  It  is 
the  duty  of  every  King's  ship,  and  indeed  of  every  other  ship,  to  give 
assistance,  as  well  against  the  elements  as  against  the  enemy.  It  was 
properly  performed  in  this  instance  ;  but  what  was  the  amount  of  their 
exertions?  There  were  two  acts;  —  one  of  sending  some  men  on 
board,  on  the  appearance  of  the  vessel  in  distress,  and  the  other  of 
sending  a  cable  and  anchor  with  some  men,  when  the  storm  abated ; 
acts  useful  and  meritorious,  but  ranking  at  the  best  but  moderately  in 
the  scale  of  utility  and  merit.  In  these  acts  of  assistance  there  was 
no  personal  danger :  to  call  it  a  case  of  derelict,  preserved  by  their  in- 
terposition, does  not  accord  with  any  view  that  I  have  been  used  to 
entertain  of  the  legal  nature  of  a  derelict,  or  of  a  salvage  service 
applied  to  property  in  that  situation.  The  value  of  the  property 
saved  is  about  £6239.  — I  shall  give  a  sixth  of  that  sum,  or  £1000  to 
the  master  and  boy,  in  tliis  proportion,  £SoO  to  the  master,  and  £150 
to  the  boy;  who,  I  observe,  is  described  "as  his  apprentice"  and 
rather  above  the  condition  of  a  common  sea  boy  without  articles:  if 
half  as  much,  or  £.500  is  given  to  the  King's  ship,  to  be  distributed 
amongst  the  whole  number  of  persons  on  board,  in  the  ordinary  pro- 
portions of  a  prize  distribution,  it  is  the  utmost  that  can  be  allowed, 
upon  the  most  liberal  justice  that  can  be  due  to  their  services.  The 
expense  of  this  application  to  the  discretion  of  the  court  must  be  paid 
by  the  owners.'^ 

1  In  The.  Pennsijlvania,  1809,  1  Act.  o?>,  Sir  William  Gr.int  held  the  master  or  crew 
of  a  neutral  vessel  captured  not  bound  to  assist  in  carrying  the  vessel  into  port  for 
adjudication  ;  that  resistance  to  the  captors  by  the  master  or  cre^v  must  be  proved  to 
liave  been  actually  made,  in  order  to  subject  the  vessel  to  condemnation  on  the  prin- 
ciple of  rescue.  See  The  War  OiL^lnn,  179'.*,  2  C.  Rob.  299.  In  Bas  v.  Tinrj,;,  1800, 
4  Dall.  37,  salvage  was  allowed  for  the  recapture  of  an  American  vessel  from  French 
captors,  and  in  Talbot  v.  Spfimin,  1801,  1  Cr.  1,  for  the  capture  of  a  neutral  vessel; 
Clayton  v.  Ship  flarmouy,  1  Pet.  Adm.  Dec.  70  ;  .3  Kent's  Com.  247  ;  Williams  v.  Suffolk 
Ins.  Co.,  1838,  3  Sumn.  270,  275.     Mr.  Dana's  digest  of  authority  is  as  follows  :  — 

"In  a  case  of  rescue  of  a  vessel  of  commerce,  the  salvage  is  civil,  and  the  cause 
docs  not  go  into  a  prize  court.  Recapture  from  an  enemy  is  cognizable  by  a  prize 
court  as  a  belligerent  act,  and  presents  a  case  of  military  salvage.  If,  in  adilition  to  the 
belligerent  recapture,  there  has  been  a  voluntary  act  of  saving  from  a  distinct  marine 
peril,  beyond  the  obligations  of  the  jiarties,  civil  salvage  may  be  combined  with  the 
military,  and  incidentally  adjuilicaied  by  the  prize  court  having  cognizance  of  the 


CHAP.  II.]  UNITED    STATES    V.    RICE.  655 

Section  37.  —  Hostile  Occupatiok,  Conquest,  and  Cession. 


UNITED    STATES  v.  RICE. 
Supreme  Court  of  the  United  States,  1819. 

(i  Wheaton,  24G.) 

Story,  J.,  delivered  the  opinion  of  the  court:  — 

"The  single  question  arising  on  the  pleadings  in  this  case  is, 
whether  goods  imported  into  Castine,  during  its  occupation  by  the 
enemy,  are  liable  to  the  duties  imposed  by  the  revenue  laws  upon 

recapture.  It  is  the  duty  of  persons  in  the  naval  service,  in  time  of  war,  to  recapture 
as  mucli  as  to  capture  ;  but  it  is  a  duty  they  owe  to  their  government ;  and  the  policy 
and  practice  has  always  been,  if  tlie  owner  claims  his  vessel,  to  require  liim  to  pay 
salvage  to  the  recaptors,  wiiich  is  in  lieu  of  the  prize-money  they  Avould  receive  in  case 
the  recaptured  vessel  had  been  condemned  as  prize.  Tlie  mariner's  contract  with  the 
owners,  in  a  vessel  of  commerce,  does  not  oblige  liim  to  attempt  a  rescue,  after  capture 
by  a  belligerent  enemy,  in  sucli  a  sense  tliat  liis  refusal  or  failure  to  attempt  it,  in  a 
proper  case,  would  be  a  breach  of  liis  contract.  It  is,  therefore,  always  a  case  for 
salvage.  Two  Friends,  1  Rob.  271  ;  The  Lilla,  2  Sprague's  Decisions,  and  25  Law 
Reporter,  92  ;  Helen,  3  Rob.  224. 

"  If  cruiser  takes  a  prize  and  loses  it,  whether  by  rescue,  recapture,  or  otherwise,  and  i 
she  is  again  captured  by  a  second  cruiser  of  the  same  nation,  it  is  not  a  recapture  for  \ 
the  benefit  of  the  first  captor,  subject  to  salvage,  but  an  original  capture.  For  these 
and  like  cases  of  mixed  recapture,  see  Valin,  Traite  des  Prises,  ch.  vi.  §  1.  ThePolli/, 
Kov.  21,  1780,  4  Rob.  217,  note;  The  Marguerite,  April  3, 1781 ;  Astrea,  1  Wheat.  125; 
Lord  Nelson,  Edw.  79;  Diligentia,\  Dods.  404;  John  and  Jane,  4  Rob.  21G  ;  Gage, 
6  Rob.  272  ;  Ordonnance  de  1681,  Des  Prises,  art.  9,  '  De  Proprie'te/  No.  99;  Azuni, 
Partie  II.  ch.  4,  §§  8,  9 ;  Emerigon,  des  Assurances,  tit.  i.  pp.  504-5;  8  Pliillimore's 
Intern.  Law,  §  424;  Chitty's  Law  of  Nations,  91;  The  Short  Staple,  9  Crancli,  55; 
Bella,  Princ.  de  Der.  Nat.  10:3;  flenri/,  Edw.  GO. 

"Salvage  is  not  due  to  a  public  sliip  for  extricating  anotlier  public  ship  from  danger 
of  capture,  in  a  common  enterprise.  The  Bell,  Edw.  66.  Sir  W.  Scott  said  it  would 
be  converting  every  engagement  into  a  struggle  for  salvage. 

"  As  to  right  of  revenue  cutters  and  privateers  in  recaptures,  see  The  Wanstead, 
1  Edw.  309;  The  Providence,  U.  270;  The  Dorothy  Foster,  &  Rob.  88;  The  Bellona, 
Edw.  63;  The  Sedulous,  1  Dods.  253;  U.  S.  Prize  Act,  1864,  cii.  174,  §§  10,  32,  33 
(13  U.  S.  Law,  306)."    Dana's  Wheaton,  note  No.  184. 

For  the  provisions  of  recapture,  see  U.  S.  Rev.  St.  §  4652 ;  Englisli  Prize  Act  of  j 
27  and  28  Vict.  c.  25,  §  40. 

The  Emily  St.  Pierre,  1864,  Dana's  Wlicaton,475,  note  183,  established  tliat  it  is  not  || 
the  duty  of  a  neutral  government  to  restore  a  private  vessel  of  one  of  its  citizens  wliich  ' 
lias  been  rescued  by  her  crew  from  a  belligerent  captor  before  condemnation.     See 
also  Bernard,  Neutrality  of  Great  Britain,  325-329. 

Id  the  case  of  The  Lone,  3  Op.  Atty.-Gen.  377,  this  vessel  had  entered  tiie  port  of 
Matamoras  while  it  was  blockaded  by  a  French  squadron  (1838),  and  sailed  thence  for 


656  EFFECTS    OF   WAR    AS   BETWEEN    ENEMIES.     [fART  U. 

goods  imported  into  the  United  States.  It  appears,  by  the  pleadings, 
tliat  on  the  first  day  of  September,  1814,  Castine  was  captured  by 
the  enemy,  and  remained  in  his  exclusive  possession,  under  the  com- 
mand and  control  of  his  military  and  naval  forces,  until  after  the  rati- 
fication of  the  treaty  of  peace,  in  February,  1815,  During  this  period, 
the  British  government  exercised  all  civil  and  military  authority 
over  the  place ;  and  established  a  custom-house,  and  admitted  goods 
to  be  imported,  according  to  regulations  prescribed  by  itself,  and, 
among  others,  admitted  the  goods  upon  which  duties  are  now  de- 
manded. These  goods  remained  at  Castine  until  after  it  was  evacu- 
ated by  the  enemy,  and  upon  the  reestablishment  of  the  American 
government,  the  collector  of  the  customs,  claiming  a  right  to  Amer- 
ican duties  on  the  goods,  took  the  bond  in  question  from  the  defend- 
ant, for  the  security  of  them. 

"  Under  these  circumstances,  we  are  of  opinion,  that  the  claim 
for  duties  cannot  be  sustained.  By  the  conquest  and  military  occu- 
pation of  Castine,  the  enemy  acquired  that  firm  possession  which 
enabled  him  to  exercise  the  fullest  rights  of  sovereignty  over  that 
place.  The  sovereignty  of  the  United  States  over  the  territory  was, 
of  course,  suspended,  and  the  laws  of  the  United  States  could  no 
longer  be  rightfully  enforced  there,  or  be  obligatory  upon  the  inhab- 
itants who  remained  and  submitted  to  the  conquerors.  By  the  sur- 
render the  inhabitants  passed  under  a  temporary  allegiance  to  the 
British  government,  and  were  bound  by  such  laws,  and  such  only,  as 
it  chose  to  recognize  and  impose.  From  the  nature  of  the  case,  no 
other  laws  could  be  obligatory  upon  them ;  for  where  there  is  no 
protection,  or  allegiance,  or  sovereignty,  there  can  be  no  claim  to  obedi- 
ence. Castine  was,  therefore,  during  this  period,  so  far  as  respected 
our  revenue  laws,  to  be  deemed  a  foreign  port ;  and  goods  imported 
into  it  by  the  inhabitants,  were  subject  to  such  duties  only  as  the 
British  government  chose  to  require.  Such  goods  were,  in  no  cor- 
rect sense,  imported  into  the  United  States.  The  subsequent  evacu- 
ation by  the  enemy,  and  resumption  of  authority  by  the  United 
States,  did  not,  and  could  not,  change  the  character  of  the  previous 
transactions. 

"  The  doctrines  respecting  the  Jus  2'>ostUmin!i  are  wholly  inapplica- 

New  Orleans.  On  the  voyage  she  was  captured  by  a  French  cruiser;  but  sonic  days 
later  she  was  rescued  by  her  captain,  who  brought  lier  into  New  Orleans.  A  demand 
was  made  on  tiie  President  by  tiie  French  Government  for  her  return  to  the  captors. 
Attorney-General  Grundy  advised  that  the  President  had  no  power  to  grant  the 
demand,  the  case  involving  questions  to  be  settled   by  the  courts,  and  not  by  the 

.  executive,  and  that  the  claimants  must  go  into  tlie  courts.  He  also  advi.«ed  that  if  a 
vessel,  after  escaping  from  her  captors,  terminated  her  voyage  in  safety,  her  liability 

.  to  condemnation  for  the  escape  entirely  ceases.     3  Wharton's  Digest,  179.  —  Ed. 


CHAP.  II.]         AMERICAN   INSUPwANCE   CO.    V.    CANTER.  G57 

ble  to  the  case.  The  goods  were  liable  to  American  duties,  when 
imported,  or  not  at  all.  That  they  were  not  so  liable  at  the  time  of 
importation,  is  clear  from  what  has  been  already  stated ;  and  when, 
upon  the  return  of  peace,  the  jurisdiction  of  the  United  States  was 
reassumed,  they  were  in  the  same  predicament  as  they  would  have 
been  if  Castuie  had  been  a  foreign  territory  ceded  by  treaty  to  the 
United  States,  and  the  goods  had  been  previously  imported  there. 
In  the  latter  case,  there  would  be  no  pretence  to  say  that  American 
duties  could  be  demanded  ;  and,  upon  principles  of  public  or  munic- 
ipal law,  the  cases  are  not  distinguishable. 

"  The  authorities  cited  at  the  bar,  would,  if  there  were  any  doubt, 
be  decisive  of  the  question.  But  we  think  it  too  clear  to  require  any 
aid  from  authority."  ^ 


THE  AMERICAN  INSURANCE  COMPANY  v.  CANTER. 

Supreme  Court  of  the  United  States,  1828. 

(I  Peters,  -511.) 

Marshall,  C.  J.:  ^-"  The  course  which  the  argument  has  taken  will 
require,  that,  in  deciding  this  question,  the  Court  should  take  into 
view  the  relation  m  which  Florida  stands  to  to  the  United  States. 

"  The  Constitution  confers  absolutely  on  the  government  of  the 
Union  the  powers  of  making  war  and  of  making  treaties ;  conse- 
quently, that  government  possesses  the  power  of  acquiring  territory 
either  by  conquest  or  by  treaty. 

"  The  usage  of  the  world  is,  if  a  nation  be  not  entirely  subdued,  to 
consider  the  holding  of  conquered  territory  as  a  mere  militarj^  oc- 
cupation, until  its  fate  shall  be  determined  at  the  treaty  of  peace. 
If  it  be  ceded  by  the  treaty,  the  acquisition  is  confirmed  and  the 
ceded  territory  becomes  a  part  of  the  nation  to  which  it  is  an- 
nexed ;  either  on  the  terms  stipulated  in  the  treaty  of  cession,  or  on 
such  as  its  new  master  shall  impose.  On  such  transfer  of  territory, 
it  has  never  been  held,  that  the  relations  of  the  inhabitants  with 
each  other  undergo  any  change.  Their  relations  with  their  former 
sovereign  are  dissolved,  and  new  relations  are  created  between 
them  and  the  government  which  has  acquired  their  territory.  The 
same  act  which  transfers  their  country,  transfers  the  allegiance  of 

1  In  the  United  States  v.  Hayward,  1815,  2  Gall.  485,  Mr.  Justice  Story  held 
ttiMt  Castine  was  to  be  considered  a  "  foreign  port,"  with  reference  to  the  non- 
importation acts.  —  Ed. 

-  Facts  omitted  and  onh-  so  nmcli  of  the  opinion  is  given  as  relates  to  the  status  of 
Florida  after  the  cession  cf  tiiat  territory  to  United  States  in  181'J.  — Ed. 

42 


658  EFFECTS    OF   TVAR   AS    BETWEEN    ENEMIES.       [PART  II. 

those  who  remain  in  it;  and  the  law,  M-hich  may  be  denominated  po- 
litical, is  necessarily  changed,  althougli  that  which  regulates  the  in- 
tercourse and  general  conduct  of  individuals,  remains  in  force  until 
altered  by  the  newly-created  power  of  the  State. 

"On  the  2d  of  February,  1819,  Spain  ceded  Florida  to  the 
United  States.  The  6th  article  of  the  treaty  of  cession  contains  the 
following  provision :  '  The  inhabitants  of  the  territories  which  his 
Catholic  majesty  cedes  to  the  United  States  by  this  treaty,  shall  be 
mcorporated  in  the  Union  of  the  United  States  as  soon  as  may  be 
consistent  with  the  principles  of  the  federal  Constitution ;  and  ad- 
mitted to  the  enjoyment  of  the  privileges,  rights,  and  immunities  of 
the  citizens  of  the  United  States.' 

"  This  treaty  is  the  law  of  the  land  and  admits  the  inhabitants  of 
Florida  to  the  enjoyment  of  the  privileges,  rights,  and  immunities 
of  the  citizens  of  the  United  States.  It  is  unnecessary  to  inquire 
whether  this  is  not  their  condition,  independent  of  stipulation. 
They  do  not,  however,  participate  in  political  power ;  they  do  not 
share  in  the  government,  till  Florida  shall  become  a  state.  In  the 
meantime  Florida  continues  to  be  a  territory  of  the  United  States  ; 
governed  by  virtue  of  that  clause  in  the  Constitution  which  em- 
powers Congress  '  to  make  all  needful  rules  and  regulations  re- 
specting the  territory  or  other  property  belongmg  to  the  United 
States.' "  1 

1  In  the  head-note  to  Cross  v.  Harrison,  1853, 16  How.  164,  the  following  account  is 
given  of  the  status  of  California  under  the  military  occupation  of  the  United  States. 

"  In  the  war  with  Mexico  the  port  of  San  Francisco  was  conquered  by  the  arms  of 
the  United  States,  in  the  year  1846,  and  shortly  afterwards  the  United  States  had 
military  possession  of  all  of  Upper  California.  Early  in  1847  the  President  of  the 
United  States,  as  constitutional  commander-in-chief  of  the  army  and  navy,  authorized 
the  military  and  naval  commanders  of  the  United  States  forces  in  California  to 
exercise  the  belligerent  rights  of  a  conqueror  and  to  form  a  civil  and  military  govern- 
ment for  the  conquered  territory,  with  power  to  impose  duties  on  imports  and  tonnage 
for  the  support  of  such  government  and  of  tlie  army  which  had  the  conquest  in 
possession. 

"  This  was  done,  and  tonnage  and  import  duties  were  levied  under  a  war  tarifT, 
which  had  been  established  by  the  civil  government  for  that  purpose  until  official 
notice  was  received  by  the  civil  and  military  governor  of  California,  that  a  treaty  of 
peace  had  been  made  with  Mexico  by  which  Upper  California  had  been  ceded  to  the 
United  States. 

"  Upon  receiving  this  intelligence  the  governor  directed  that  import  and  tonnage 
duties  should  thereafter  be  levied  in  conformity  with  sucli  as  were  to  be  paid  in  tlie 
other  ports  of  the  United  States,  by  the  acts  of  Congress ;  and  for  such  purpose  he 
appointed  the  defendant  in  this  suit  collector  of  the  port  of  San  Francisco. 

"The  plaintiffs  now  seek  to  recover  from  him  certain  tonnage  duties  and  imposts 
upon  foreign  merchandise  paid  by  them  to  the  defendant  as  collector  between 
the  3d  of  February,  1848  (the  date  of  the  treaty  of  peace),  and  the  13th  of  November, 


CHAP.  II.]  FLEMING  V.   PAGE.  659 

flemi:n^g  v.  page. 

Supreme  Court  of  the  United  States,  1850. 

(9  Howard,  603.) 

This  action  is  brought  by  the  plaintiffs,  merchants,  residing  in  the 
city  of  Philadelphia,  against  the  defendant,  the  late  collector  of  the 
port  of  Philadelphia,  to  recover  the  sum  of  one  thousand  five  hun- 
dred and  twenty-nine  dollars,  duties  paid  on  the  14tli  of  June,  1847, 
under  protest,  on  goods  belonging  to  the  plaintiffs,  brought  from 
Tampico  while  that  place  was  in  the  military  occupation  of  the 
forces  of  the  United  States. 

On  the  15th  of  November,  1846,  Commodore  Conner  took  military 
possession  of  Tampico,  a  seaport  of  the  State  of  Tamauiipas,  and 
from  that  time  until  the  treaty  of  peace  it  was  garrisoned  by  Amer- 
ican forces,  and  remained  in  their  military  occupation. 

Justice  was  admmistered  there  by  courts  appointed  under  the 
military  authority,  and  a  custom-house  was  established  there,  and  a 
collector  appointed,  under  the  military  and  naval  authority. 

Upon  a  certificate  of  division  in  opinion  in  the  Circuit  Court  the 
case  came  up  to  this  court. 

Judgment, — Taxey,  C.  J. : — 

"  The  question  certified  by  the  Circuit  Court  turns  upon  the  con- 
struction of  the  act  of  Congress  of  July  .30,  1846. 

"The  duties  levied  upon  the  cargo  of  the  schooner  Catharine  were 
duties  imposed  by  this  law  upon  goods  imported  from  a  foreign 
country.  And  if  at  the  time  of  this  shipment  Tampico  was  not  a 
foreign  port,  within  the  meaning  of  the  act  of  Congress,  then  the 
duties  were  illegally  charged,  and,  having  been  paid  under  protest, 

1849  (when  the  collector  appointed  by  the  President,  according  to  law,  entered  upon 
the  duties  of  his  offiue),  upon  the  ground  that  they  had  been  illegally  exacted.  The 
formation  of  the  civil  government  in  California,  when  it  was  done,  was  the  lawful 
exercise  of  a  belligerent  right  over  a  conquered  territory.  It  was  the  existing  govern- 
ment when  the  territory  was  ceded  to  the  United  States,  as  a  conquest,  and  did  not 
cease  as  a  matter  of  course,  or  as  a  consequence  of  tiie  restoration  of  peace  ;  and  it 
was  rightfully  continued  after  peace  was  made  witli  Mexico,  until  Congress  legislated 
otherwise,  under  its  constitutional  power,  to  dispose  of  and  make  all  needful  rules  and 
regulations  respecting  the  territory  or  other  property  belonging  to  the  United  States. 

"  The  tonnage  duties  and  duties  upon  foreign  goods  imported  into  San  Francisco 
were  legally  demanded  and  lawfully  collected,  and  afterwards,  from  the  ratification  of 
the  treaty  of  peace  until  the  revenue  system  of  the  United  States  was  put  into 
practical  operation  in  California  under  the  acts  of  Congress  passed  for  that  purpose." 
—  Ed. 


660  EFFECTS    OF    WAR    AS    BETWEEN    ENEMIES.        [PAl;T  IF. 

the  plaintiffs  would  be  entitled  to  recover  in  this  action  the  amount 
exacted  by  the  collector. 

"  The  port  of  Tampico,  at  which  the  goods  were  shipped,  and  the 
Mexican  State  of  Tamaulipas,  in  Avhich  it  is  situated,  were  undoubt- 
edly at  the  time  of  the  shipment  subject  to  the  sovereignty  and  do- 
minion of  the  United  States.  The  Mexican  authorities  had  been 
driven  out,  or  had  submitted  to  our  army  and  navy ;  and  the  country 
was  in  the  exclusive  and  firm  possession  of  the  United  States,  and 
governed  by  its  military  authorities  acting  under  the  orders  of  the 
President.  But  it  does  not  follow  that  it  was  a  part  of  the  United 
States,  or  that  it  ceased  to  be  a  foreign  country,  in  the  sense  in 
which  these  words  are  used  in  the  acts  of  Congress. 

"  The  country  in  question  had  been  conquered  in  war.  But  the 
genius  and  character  of  our  institutions  are  peaceful,  and  the  power 
to  declare  war  was  not  conferred  upon  Congress  for  the  purposes  of 
aggression  or  aggrandizement,  but  to  enable  the  general  government 
to  vindicate  by  arms,  if  it  should  become  necessary,  its  own  rights 
and  the  rights  of  its  citizens. 

"  A  war,  therefore,  declared  by  Congress,  can  never  be  presumed 
to  be  waged  for  the  purpose  of  conquest  or  the  acquisition  of  terri- 
tory ;  nor  does  the  law  declaring  the  war  imply  an  authority  to  the 
President  to  enlarge  the  limits  of  the  United  States  by  subjugating 
the  enemy's  country.  The  United  States,  it  is  true,  may  extend  its 
boundaries  by  conquest  or  treaty,  and  may  demand  the  cession  of 
territory  as  the  condition  of  peace,  in  order  to  indemnify  its  citizens 
for  the  injuries  they  have  suffered,  or  to  reimburse  the  government 
for  the  expenses  of  the  war.  But  this  can  be  done  only  by  the 
treaty-making  power  or  the  legislative  authority,  and  is  not  a  part 
of  the  power  conferred  upon  the  President  by  the  declaration  of  war. 
His  duty  and  his  power  are  purely  military.  As  commander-in-chief, 
he  is  authorized  to  direct  the  movements  of  the  naval  and  military 
forces  placed  by  law  at  his  command,  and  to  employ  them  in  the 
manner  he  may  deem  most  effectual  to  harass  and  conquer  and  sub- 
due the  enemy.  He  may  invade  the  hostile  country,  and  subject 
it  to  the  sovereignty  and  authority  of  the  United  States.  But  his 
conquests  do  not  enlai-ge  the  boundaries  of  this  Union,  nor  extend 
the  operation  of  our  institutions  and  laws  beyond  the  limits  before 
assigned  to  them  by  the  legislative  power. 

"  It  is  true,  that,  when  Tampico  had  been  captured,  and  the  State 
of  Tamaulipas  subjugated,  other  nations  were  bound  to  regard  the 
counti-y,  while  our  possession  continued,  as  the  territory  of  the 
United  States,  and  to  respect  it  as  such.  For,  by  the  laws  and 
usages  of  nations,  conquest  is  a  valid  title,  while  the  victor  main- 


CHAP,  n.]  FLEMTXG   V.   PAGE.  661 

tains  the  exclusive  possession  of  the  conquered  country.  Tlic  citi- 
zens of  no  other  nation,  tlierefore,  had  a  riglit  to  enter  it  witliout  tlie 
permission  of  the  American  authorities,  nor  to  liold  intercourse  with 
its  inhabitants,  nor  to  trade  with  them.  As  regarded  all  otlier 
nations,  it  M'as  a  part  of  tlie  United  States,  and  belonged  to  them  as 
exclusively  as  the  territory  included  in  our  established  boundaries. 

"  I3ut  yet  it  was  not  a  part  of  this  Union.  For  every  nation  which 
acquires  territory  by  treaty  or  conquest  holds  it  according  to  its 
own  institutions  and  laws.  And  the  relation  in  which  the  port  of 
Tampico  stood  to  the  United  States,  while  it  was  occupied  by  their 
arms,  did  not  depend  upon  the  laws  of  nations,  but  upon  our  own 
Constitution  and  acts  of  Congress.  The  power  of  the  President, 
under  which  Tampico  and  the  State  of  Tamaulipas  were  conquered 
and  held  in  subjection,  was  simply  that  of  a  military  commander 
prosecuting  a  war,  waged  against  a  public  enemy,  by  the  authority 
of  his  government.  And  the  country  from  which  these  goods  were 
imported  was  invaded  and  subdued,  and  occupied  as  the  territory  of 
a  foreign  hostile  nation,  as  a  portion  of  Mexico,  and  was  held  in  pos- 
session in  order  to  distress  and  harass  the  enemy.  While  it  was 
occupied  by  our  troops  they  were  in  an  enemy's  country,  and  not 
in  their  own ;  the  inhabitants  were  still  foreigners  and  enemies,  and 
owed  to  the  United  States  nothing  more  than  the  submission  and 
obedience,  sometimes  called  temporary  allegiance,  which  is  due  from 
a  conquered  enemy,  when  he  surrenders  to  a  force  which  he  is  unable 
to  resist.  But  the  boundaries  of  the  United  States,  as  they  existed 
when  war  was  declared  against  Mexico,  were  not  extended  by  the 
conquest ;  nor  could  they  be  regulated  by  the  varying  incidents  of 
war,  and  be  enlarged  or  diminished  as  the  armies  on  either  side 
advanced  or  retreated.  They  remained  unchanged.  And  every  place 
which  was  out  of  the  limits  of  the  United  States,  as  previously 
established  by  the  political  authorities  of  the  govennnent,  was  still 
foreign  ;  nor  did  our  Luvs  extend  over  it.  Tampico  was,  therefore, 
a  foreign  port  when  this  shipment  was  made. 

"  Again,  there  was  no  act  of  Congress  establishing  a  custom-house 
at  Tampico,  nor  authorizing  the  appointment  of  a  collector ;  and, 
consequently,  there  was  no  officer  of  the  United  States  authorized 
by  law  to  grant  the  clearance  and  autheuticate  the  coasting  manifest 
of  the  cargo,  in  the  manner  directed  by  law,  where  the  voyage  is 
from  one  port  of  the  United  States  to  another.  The  person  who 
acted  in  the  character  of  collector  in  this  instance,  acted  as  such 
under  the  authority  of  the  military  commander,  and  in  obedience  to 
his  orders ;  and  the  duties  he  exacted,  and  the  regulations  he 
adopted,  were  not  those  prescribed  by  law,  but  by  the  President  in 


662  EFFECTS    OF   WAR   AS   BETWEEN   ENEMIES.       [PART  II. 

his  character  of  commander-in-chief.  The  custom-house  was  estab- 
Hshed  in  an  enemy's  country,  as  one  of  the  weapons  of  war.  It  was 
estabhshed,  not  for  the  purpose  of  giving  to  the  people  of  Tamauli- 
pas  the  benefits  of  commerce  with  tlie  United  States,  or  witli  other 
countries,  but  as  a  measure  of  liostihty,  and  as  a  part  of  the  military 
operations  in  Mexico ;  it  was  a  mode  of  exacting  contributions  from 
the  enemy  to  support  our  army,  and  intended  also  to  cripple  the 
resources  of  Mexico,  and  make  it  feel  the  evils  and  burdens  of  the 
war.  The  duties  required  to  be  paid  were  regulated  with  this  view, 
and  were  nothing  more  than  contributions  levied  upon  the  enemy, 
which  the  usages  of  war  justify  when  an  army  is  operating  in  the 
enemy's  country.  The  permit  and  coasting  manifest  granted  by  an 
ofiicer  thus  appointed,  and  thus  controlled  by  military  authority, 
could  not  be  recognized  in  any  port  of  the  United  States,  as  the 
documents  required  by  the  act  of  Congress  when  the  vessel  is  en- 
gaged in  the  coasting  trade,  nor  could  they  exempt  the  cargo  from 
the  payment  of  duties. 

"  This  construction  of  the  revenue  laws  has  been  uniformly  given 
by  the  administrative  department  of  the  government  in  every  case 
that  has  come  before  it.  And  it  has,  indeed,  been  given  in  cases 
where  there  appears  to  have  been  stronger  ground  for  regarding  the 
place  of  shipment  as  a  domestic  j)ort.  For,  after  Florida  had  been 
ceded  to  the  United  States,  and  the  forces  of  the  United  States 
had  taken  possession  of  Pensacola,  it  was  decided  by  the  Treasury 
Department,  that  goods  imported  from  Pensacola  before  an  act  of 
Congress  was  passed  erecting  it  into  a  collection  district,  and  author- 
izing the  appointment  of  a  collector,  were  liable  to  duty.  That  is, 
that  although  Florida  had,  by  cession,  actually  become  a  part  of  the 
United  States,  and  Avas  in  our  possession,  yet,  under  our  revenue 
laws,  its  ports  must  be  regarded  as  foreign  until  they  were  estab- 
lished as  domestic,  by  act  of  Congress;  and  it  appears  that  this  de- 
cision was  sanctioned  at  the  time  by  the  Attorney-General  of  the 
United  States,  the  law  officer  of  the  government.  And,  although 
not  so  directly  applicable  to  the  case  before  us,  yet  the  decisions  of 
the  Treasury  Department  in  relation  to  Amelia  Island,  and  certain 
ports  in  Louisiana,  after  that  province  had  been  ceded  to  the  United 
States,  were  both  made  upon  the  same  grounds.  And,  in  the  latter 
case,  after  a  custom-house  had  been  established  by  law  at  New 
Orleans,  the  collector  at  that  place  was  instructed  to  regard  as  for- 
eign ports  Baton  Kouge  and  other  settlements  still  in  the  possession 
of  Spain,  whether  on  the  Mississippi,  Iberville,  or  the  sea-coast. 
The  Dei)artment  in  no  instance  that  we  are  aware  of,  since  the 
establishment  of  the  government,  has  ever  recognized  a  place  in  a 


CHAP.  II.]  FLEMING   V.   PAGE.  663 

newly-acqnired  country  as  a  domestic  port,  from  which  the  coasting' 
trade  might  be  carried  on,  unless  it  had  been  previously  made  so  by 
act  of  Congress. 

"The  principle  thus  adopted  and  acted  upon  by  the  executive 
department  of  the  government  has  been  sanctioned  by  the  decisions 
in  this  court  and  the  circuit  courts  whenever  the  question  came 
before  them.  We  do  not  propose  to  comment  upon  the  different 
cases  cited  in  the  argument.  It  is  sufficient  to  say,  that  there  is  no 
discrepancy  between  them.  And  all  of  them,  so  far  as  they  apply, 
maintain,  that  under  our  revenue  laws  every  port  is  regarded  as  a 
foreign  one,  unless  the  custom-house  from  which  the  vessel  clears  is 
within  a  collection  district  established  by  act  of  Congress,  and  the 
officers  granting  the  clearance  exercise  their  functions  under  the 
authority  and  control  of  the  laws  of  the  United  States. 

"In  the  view  we  have  taken  of  this  question,  it  is  unnecessary  to 
notice  particularly  the  passages  from  eminent  writers  on  the  laws 
of  nations  which  were  brought  forward  in  the  argument.  They 
speak  altogether  of  the  rights  which  a  sovereign  acquires  and  the 
powers  he  may  exercise  in  a  conquered  country,  and  they  do  not 
bear  upon  the  question  we  are  considering.  For  in  this  country  the 
sovereignty  of  the  United  States  resides  in  the  people  of  the  sev- 
eral States,  and  they  act  through  their  representatives  according  to 
the  delegation  and  distribution  of  powers  contained  in  the  constitu- 
tion. And  the  constituted  authorities  to  whom  the  power  of 
making  war  and  concluding  peace  is  confided,  and  of  determining 
whether  a  conquered  country  shall  be  permanently  retained  or  not, 
neither  claimed  nor  exercised  any  rights  or  powers  in  relation  to  the 
territory  in  question  but  the  rights  of  war.  After  it  was  subdued  it 
was  uniformly  treated  as  an  enemy's  country  and  restored  to  the 
possession  of  the  Mexican  authorities  when  peace  was  concluded. 
And  certainly  its  subjugation  did  not  compel  the  United  States, 
while  they  held  it,  to  regard  it  as  a  part  of  their  dominions,  nor  to 
give  to  it  any  form  of  civil  government,  nor  to  extend  to  it  our 
laws. 

"  Xeither  is  it  necessary  to  examine  the  English  decisions  which 
have  been  referred  to  by  counsel.  It  is  true  that  most  of  the  States 
have  adopted  the  principles  of  English  jurisprudence,  so  far  as  it 
concerns  private  and  individual  rights,  and  when  such  rights  are  in 
question  we  habitually  refer  to  the  English  decisions,  not  only  with 
respect,  but  in  many  cases  as  authoritative.  But  in  the  distribution 
of  political  power  between  the  great  departments  of  government, 
there  is  such  a  wide  difference  between  the  power  conferred  on  the 
President  of  the  United  States  and  the  authority  and  sovereignty 


664  EFFECTS    OF    WAR    AS    BETWEEN   ENEMIES.       [PART  II. 

which  belong  to  the  English  crown,  that  it  would  be  altogether  un- 
safe to  reason  from  any  supposed  resemblance  between  them,  either 
as  regards  conquest  in  war  or  any  other  subject  where  the  rights 
and  powers  of  the  executive  arm  of  the  government  are  brought 
into  question.  Our  own  conijjtitution  and  form  of  government  must 
be  our  only  guide.  And  we  are  entirely  satisfied  that,  under  the 
constitution  and  laws  of  the  United  States,  Tampico  was  a  foreign 
port,  within  the  meaning  of  the  act  of  1846,  when  these  goods  Avere 
shipped,  and  that  the  cargoes  Avere  liable  to  the  duty  charged  upon 
them,  and  we  shall  certify  accordingly  to  the  circuit  court." 

Mr.  Justice  McLeax  dissented. 

Order. — "  This  cause  came  on  to  be  heard  on  the  transcript  of 
the  record  from  the  circuit  court  of  the  United  States  for  the 
eastern  district  of  Pennsylvania,  and  on  the  point  or  question  on 
which  the  judges  of  the  said  circuit  court  were  opposed  in  opinion 
and  which  was  certified  to  this  court  for  its  opinion,  agreeably  to 
the  act  of  Congress  in  such  case  made  and  provided,  and  was 
argued  by  counsel. — On  consideration  whereof,  it  is  the  opinion  of 
this  court,  that  Tampico  was  a  foreign  port  within  the  meaning  of 
the  act  of  Congress  of  July  30,  1846,  entitled  'An  act  reducing  the 
duties  on  imports,  and  for  other  purposes,'  and  that  the  goods, 
wares,  and  mei'chandise  as  set  forth  and  described  in  the  record 
were  liable  to  the  duties  charged  upon  them  under  said  act  of  Con- 
gress. Whereupon  it  is  now  here  ordered  and  adjudged  by  this 
court  that  it  be  so  certified  to  the  said  circuit  court.'' 


JECKER   v.   MONTGOMERY. 
Supreme  Court  of  the  United  States,    1851. 

(13  ITownrd,  498.) 

After  California  had  been  occupied  by  the  United  States  forces, 
during  the  war  with  Mexico,  a  Prize  Court  was  set  up  at  Monterey, 
at  the  request  of  Commodore  Biddle,  and  sanctioned  by  the  Presi- 
dent. 

An  American  vessel — the  Admittance — was  captured  for  trading 
with  the  enemy,  April  7,  1847,  and  condemned  by  this  court  at 
Monterey ;  and  the  vessel  and  cargo  were  sold  under  the  sentence. 

The  question  finally  came  before  the  Supreme  Court. 

Chief  Justice  Taney,  in  pronouncing  the  judgment,  said  in  respect 
of  the  power  of  establishing  courts : — 


CHAP.  IT.]  JECKER    V.    MOXTGOIMERY.  ^^O 

« *  *  *  jn  relation  to  the  proceedings  in  the  court  at  Jlonterey, 
which  is  tlie  subject  of  the  first  demurrer,  tlie  decision  of  the  circuit 
court  is  correct. 

"  All  captures  J?«'e  belli  are  for  the  benefit  of  the  soverei^i  under 
whose  authority  they  are  made  ;  an>l  the  validity  of  tlie  seizure  and 
the  question  of  prize  or  no  prize  can  be  determined  in  his  own 
courts  only,  upon  which  he  has  conferred  jurisdiction  to  try  the 
question.  And  under  the  Constitution  of  the  United  States  the 
judicial  power  of  the  general  government  is  vested  in  one  supreme 
court,  and  in  such  inferior  courts  as  Congress  shall,  from  time  to 
time,  ordain  and  establish.  Every  court  of  the  United  States,  there- 
fore, must  derive  its  jurisdiction  and  its  authority  from  the  Consti- 
tution or  the  laws  of  the  United  States.  And  neither  the  President  I 
nor  any  military  officer  can  establish  a  court  in  a  conquered  country,  i 
and  authorize  it  to  decide  upon  the  rights  of  the  United  States,  or 
of  individuals  in  prize  cases,  nor  to  administer  the  law  of  nations. 

"  The  courts  established  or  sanctioned  in  Mexico  during  the  war 
by  the  commanders  of  the  American  forces  were  nothing  more  than 
the  agents  of  the  military  power,  to  assist  in  preserving  order  in  the 
conquered  territory,  and  to  protect  the  inhabitants  in  their  persons 
and  property  Avhile  it  was  occupied  by  the  American  arms ;  they 
were  subject  to  the  military  power,  and  their  decisions  under  its 
control,  whenever  the  commanding  officer  thought  proper  to  inter- 
fere. They  were  not  courts  of  the  United  States,  and  had  no  right 
to  adjudicate  upon  a  question  of  prize  or  no  prize.  And  the  sentence 
{>i  condemnation  in  the  court  at  Monterey  is  a  nullity,  and  can  have 
no  effect  upon  the  rights  of  any  party. 

"  The  second  demurrer  denies  the  authority  of  the  district  court 
to  adjudicate,  because  the  property  had  not  been  brought  within  its 
jurisdiction.  But  that  proposition  cannot  be  maintained  ;  and  a 
prize  court,  when  a  proper  case  is  made  for  its  interposition,  Avill 
proceed  to  adjudicate  and  condemn  the  cajitured  property  or  award 
restitution,  although  it  is  not  actually  in  the  control  of  the  court. 
It  may  always  proceed  in  rem  whenever  the  prize  or  proceeds  of  the 
prize  can  be  traced  to  the  hands  of  any  person  whatever."  ^ 

1  In  Leilensdorfer  v.  Webh,  1857,  20  How.  176,  177-179,  tl)e  court  held  that  wlien 
New  Mexico  was  conquered  it  was  only  the  allegiance  of  the  jieople  that  chansied ; 
that  their  relation  to  each  other  and  their  rigiits  of  property  remained  uncliaiised  ; 
that  tiie  executive  authority  properly  established  a  provisional  government,  which 
ordained  laws  and  instituted  a  judicial  system  ;  all  of  which  continued  after  the  war, 
until  modified  by  the  direct  legislation  of  Congress  or  by  the  territorial  government 
established  by  its  authority,  and  that  a  suit  brought  in  a  court  established  by  the  pro- 
visional government  was  properly  transferred  to  a  court  created  by  the  act  of  Con- 


666  EFFECTS    OF   WAR   AS    BETWEEN   ENEMIES.       [PART  II. 

UNITED  STATES  v.  MORENO. 

(1   Wallace,  AOO,  404.) 

Mr.  Justice  Swayne.  California  belonged  to  Spain  by  the  rights 
of  discovery  and  conquest.  The  government  of  that  country  estab- 
lished regulations  for  transfers  of  the  public  domain  to  individuals. 
When  the  sovereignty  of  Spain  was  displaced  by  the  revolutionary 
action  of  Mexico,  the  new  government  established  regulations  upon 
the  same  subject.     These  two  sovereignties  are  the  spring  heads  of  all 

gress  establisliing  the  territory  of  New  Mexico,  the  jurisdiction  of  which  was  fixed 
by  a  State  statute. 

In  the  case  of  the  Grapeshot,  1869,  9  Wall.  129,  the  Supreme  Court  decided  that, 
during  the  civil  war,  when  the  national  forces  occupied  parts  of  the  revolted  territory, 
it  was  within  tlie  authority  of  tlie  President,  as  commander-in-chief,  to  establisli  provi- 
sional courts  to  try  causes  arising  under  the  laws  of  tlie  State  or  of  tlie  United  States. 
And  as  to  the  power  of  the  military  occupant,  see  Xew  Orleans  v.  Steamship  Co.,  1874, 
20  Wall.  387  ;  Mechanics'  <^-  Traders'  Batik  v.  Union  Bank,  22  id.  220;  Harrison  v.  Mei/er, 
1875,  92  U.  S.  Ill ;  U.  S.  v.  Diekelman,  1875,  id.  520;  Neal  Dow  v.  Johnson,  1879,  100 
id.  158  ;  Gates  v.  Goodloe,  1879,  101  id.  612.  As  regards  private  property  destroyed  by 
military  operations,  see  U.  S.  v.  Pacific  R.  R.,  1886,  120  U.  S.  227,  holding  that  the 
United  States  is  not  responsible  for  the  injury  or  destruction  of  private  property 
caused  by  its  military  operations  during  the  late  civil  war,  and  that  private  parties 
were  not  chargeable  for  works  constructed  on  their  property  by  the  United  States  to 
facilitate  such  operations.  See  also  Tai/lor  v.  Nashville  ^  Chattanooga  R.  R.  Co.,  1869, 
6  Cold.  (Tenn.)  647.     See  also  Magoon,  Military  Occupation,  345-350. 

As  for  martial,  as  distinguished  from  military  law,  see  Ex  parte  Milligan,  1867,  4 
Wall.  2;  Johnson  v.  Jones  et  «/.,  1867,  44  III.,  142  (per  Lawrence,  J.);  In  re  D.  F, 
Marais,  [1902]  A.  C.  109.  In  tliis  later  case  the  facts  briefly  were:  martial  law  had 
been  proclaimed  in  Cape  Colony  owing  to  the  Boer  war,  and  the  petitioner  was 
arrested  and  kept  in  custody  by  the  military  authorities.  Neither  the  district  in  which 
he  was  taken,  nor  in  which  he  was  held,  was  the  scene  of  active  operations,  and  the 
ordinary  courts  were  in  session  The  petitioner  applied  to  the  Supreme  Court  of  the 
colony  to  release  him  from  military  custody,  and  on  the  refusal  of  his  application, 
prayed  the  Judicial  Committee  of  the  Privy  Council  for  special  leave  to  appeal ;  but 
the  petition  was  denied  (per  Halsbury,  L.  C).  This  case  has  created  much  comment, 
and  wide  difference  of  opinion  exists.  In  a  temperate  note  in  15  Harv.  Law  I?ev.  850, 
it  is  said:  "The  Supreme  Court  of  the  United  States  has  said  [in  Ex  parte  Milligan, 
supra"]  that  the  continued  sitting  of  the  ordinary  courts,  and  the  absence  of  visible 
disorder,  absolutely  preclude  a  lawful  exercise  of  martial  law.  The  Judicial  Com- 
mittee of  the  Privy  Council  takes  an  opposite  view.  It  is  submitted  that  the  latter 
view  is  preferable.  Under  modern  conditions  it  cannot  truly  be  said  that  the  absence 
of  visible  disorder  shows  there  is  no  necessity  for  martial  law.  The  continued  sitting 
of  courts  is  too  artificial  a  test  to  be  serviceable.  Martial  law  is  the  law  of  necessity. 
The  executive  must  be  left  unhampered  in  time  of  war  to  deal  with  problems  sum- 
marily, and  to  take  protective  measures  witliout  waiting  for  the  machinery  of  the 
courts."  See  martial  law,  military  rule,  in  index  to  Magoon,  op.  cit.,  and  an  elaborate 
series  of  discussion  iu  18  Law  Quarterly  Review,  117-158.  —  Ed. 


CHAP.  TI.]      FOURTEEN    DIAMOND   RINGS   V.   UNITED   STATES.        667 

the  land  titles  in  California,  existing  at  the  time  of  the  cession  of  that 
country  to   the  United  States  by  the  treaty  of  Guadalupe  Hildalgo. 
That  cession  did  not  impair  the  rights  of  private  property.    They  were  I 
consecrated  by  the  law  of  nations,  and  protected  by  the  treaty. 

The  treaty  stipulation  was  but  a  formal  recognition  of  the  pre-exist- 
ing sanction  in  tlie  law  of  nations.  The  act  of  March  3d,  1851,  was 
passed  to  assure  to  the  inhabitants  of  the  ceded  territory  the  benefit  of 
the  rights  of  property  thus  secured  to  them.  It  recognizes  alike  legal 
and  equitable  rights,  and  should  be  administered  in  a  large  and  liberal 
spirit.  A  right  of  any  validity  before  the  cession  was  equally  valid 
afterwards,  and  while  it  is  the  duty  of  the  court  in  the  cases  which 
may  come  before  it  to  guard  carefully  against  claims  originating  in 
fraud,  it  is  equally  their  duty  to  see  that  no  rightful  claim  is  rejected. 
No  nation  can  have  any  higher  interest  than  the  right  administration 
of  justice. 


FOURTEEN  DIAMOND  RINGS  v.  UNITED  STATES. 

Supreme  Court  of  the  United  States,  1901. 
(183  United  States,  176.) 

Mr.  Chief  Justice  Fuller  delivered  the  opinion  of  the  court. 

Emil  J.  Pepke,  a  citizen  of  the  United  States  and  of  the  State  of 
North  Dakota,  enlisted  in  the  First  Regiment  of  the  North  Dakota 
United  States  Volunteer  Infantry,  and  was  assigned  for  duty  with  his 
regiment  in  the  island  of  Luzon,  in  the  Philippine  Islands,  and  con- 
tinued in  the  military  service  of  the  United  States  until  the  regiment 
w'as  ordered  to  return,  and,  on  arriving  at  San  Francisco,  was  dis- 
charged September  25,  1899. 

He  brought  with  him  from  Luzon  fourteen  diamond  rings,  which  lie 
had  there  purchased,  or  acquired  through  a  loan,  subsequent  to  the 
ratification  of  the  treaty  of  peace  between  the  United  States  and  Spain, 
February  6,  1899,  and  the  proclamation  thereof  by  the  President  of  the 
United  States,  April  11,  1899. 

In  May,  1900,  in  Chicago,  these  rings  were  seized  by  a  customs 
officer  as  having  been  imported  contrary  to  law,  without  entry,  or 
declaration,  or  payment  of  duties,  and  an  information  was  filed  to 
enforce  the  forfeiture  thereof. 

To  this  Pepke  filed  a  plea  setting  up  the  facts,  and  claiming  that  the 
rings  were  not  subject  to  customs  duties  ;  the  plea  was  held  insuffi- 
cient; forfeiture  and  sale  were  decreed;  and  this  writ  of  error  was 
prosecuted. 


668  EFFECTS   OF   WAR   AS    BETWEEN"   ENEMIES.       [PAET  n. 

Tlie  tariff  act  of  July  24,  1897,  30  Stat.  151,  in  regulation  of  com- 
m-irce  with  foreign  nations,  levied  duties  "  upon  all  articles  imported 
from  foreign  countries." 

Were  these  rings,  acquired  by  this  soldier  after  the  ratification  of 
the  treaty  was  proclaimed,  when  brought  by  him  from  Luzon  to  Cali- 
fornia, on  his  return  with  his  regiment  to  be  discharged,  imported  from 
a  foreign  country  ? 

This  question  has  already  been  answered  in  the  negative,  in  respect 
of  Porto  Eico,  in  Z>e  Lima  v.  Bidwell,  182  U.  S.  1,  and  unless  the  cases 
can  be  distinguished,  which  we  are  of  opinion  they  cannot  be  in  this 
particular,  that  decision  is  controlling. 

The  Philippines,  like  Porto  Rico,  became,  by  virtue  of  the  treaty, 
ceded  conquered  territory  or  territory  ceded  by  way  of  indemnity. 
The  territory  ceased  to  be  situated  as  Castine  was  when  occupied  by 
the  British  forces  in  the  war  of  1812,  or  as  Tampico  was  when  occu- 
pied by  the  troops  of  the  United  States  during  the  Mexican  war, 
"cases  of  teraporar}-  possession  of  territory  by  lawful  and  regular  gov- 
ernments at  war  with  the  country  of  which  the  territory  so  possessed 
was  part."  ThorbKjton  v.  Smith,  8  Wall.  10.  The  Philippines  were 
not  simply  occupied  but  acquired,  and  having  been  granted  and  deliv- 
ered to  the  United  States,  by  their  former  master,  were  no  longer 
under  the  sovereignty  of  any  foreign  nation. 

In  Cross  V.  Harrison,  IG  How.  164,  the  question  was  whether  goods 
imported  from  a  foreign  country  into  California  after  the  cession  were 
subject  to  our  tariff  laws,  and  this  court  held  that  they  were. 

In  De  Lima  v.  Bidwell,  the  question  was  whether  goods  imported 
into  New  York  from  Porto  Eico,  after  the  cession,  were  subject  to 
duties  imposed  by  the  act  of  1897  on  "articles  imported  from  foreign 
countries,"  and  this  court  held  that  they  were  not.  That  act  regulated 
commerce  with  foreign  nations,  and  Porto  Eico  had  ceased  to  be  within 
that  category  ;  nor  could  territory  be  foreign  and  domestic  at  the  same 
time. 

Among  other  things  it  was  there  said :  '•  The  theory  that  a 
country  remains  foreign  with  respect  to  the  tariff  laws  until 
Congress  has  acted  by  embracing  it  witliin  the  customs  union,  presup- 
poses that  a  country  may  be  domestic  for  one  purpose  and  foreign  for 
another.  It  may  undoubtedly  become  necessary  for  the  adequate  ad- 
ministration of  a  domestic  territory  to  pass  a  special  act  providing  the 
proper  machinery  and  officers,  as  the  President  would  have  no  author- 
ity, except  under  the  war  power,  to  administer  it  himself;  but  no  act 
is  necessary  to  make  it  domestic  territory  if  once  it  has  been  ceded  to 
the  United  States.  *  *  *  This  theory  also  presupposes  that  terri- 
tory may   be  held  indefinitely  by  the  United  States ;  that  it  may  be 


CHAP.  II.]        FOURTEEN   DIAMOND    KINGS    V.    UNITED    STATES.      6G9 

treated  in  every  particular,  except  for  tariff  purposes,  as  domestic  ter- 
ritory ;  that  laws  may  be  enacted  and  enforced  by  officers  of  the  United 
States  sent  there  for  that  purpose;  that  insurrections  may  be  sup- 
pressed, wars  carried  on,  rev^enues  collected,  taxes  imposed;  in  short, 
that  everything  may  be  done  which  a  government  can  do  within  its 
own  boundaries,  and  yet  that  the  territory  may  still  remain  a  foreign 
c;iincry.  That  this  state  of  things  may  continue  for  years,  for  a  cen- 
tury even,  but  that  until  Congress  enacts  otherwise,  it  still  remains  a 
foreign  country.  To  hold  that  this  can  be  done  as  matter  of  law  we 
deem  to  be  pure  judicial  legislation.  We  find  no  warrant  for  it  in  the 
Constitution  or  in  the  powers  conferred  upon  this  court.  It  is  true 
the  non-action  of  Congress  may  occasion  a  temporary  inconvenience  ; 
but  it  does  not  follow  that  courts  of  justice  are  authorized  to  remedy  it 
by  inverting  the  ordinary  meaning  of  words." 

Xo  reason  is  perceived  for  any  different  ruling  as  to  the  Philippines. 
By  the  third  article  of  the  treaty  Spain  ceded  to  the  United  States 
"the  archipelago  known  as  the  Philippine  Islands,"  and  the  United 
States  agreed  to  pay  to  Spain  the  sum  of  twenty  million  dollars  within 
three  months.  The  treaty  was  ratified ;  Congress  appropriated  the 
money  ;  the  ratification  was  proclaimed.  The  treaty-making  power, 
the  executive  power,  the  legislative  power,  concurred  in  the  completion 
of  the  transaction. 

The  Philippines  thereby  ceased,  in  the  language  of  the  treaty,  "to 
be  Spanish."  Ceasing  to  be  Spanish,  they  ceased  to  be  foreign  coun- 
try. They  came  under  the  complete  and  absolute  sovereignty  and  do- 
minion of  the  United  States,  and  so  became  territory  of  the  United 
States  over  which  civil  government  could  be  established.  The  result 
was  the  same  although  there  was  no  stipulation  that  the  native  inhabi- 
tants should  be  incorporated  into  the  body  politic,  and  none  securing 
to  them  the  right  to  choose  their  nationality.  Their  allegiance  became 
due  to  the  United  States  and  they  became  entitled  to  its  protection. 

But  it  is  said  that  the  case  of  the  Philippines  is  to  be  distinguished 
from  that  of  Porto  Rico  because  on  February  14,  1899,  after  the  ratifi- 
cation of  the  treaty,  the  Senate  resolved,  as  given  in  the  margin,^  that 

1  "  Resolved  by  the  Senate  and  House  of  Representatives  of  the  United  States  of 
America  in  Congress  assembled,  Tiiat  by  the  ratification  of  the  treaty  of  peace  with 
Spain  it  is  not  intended  to  incorporate  the  inhabitants  of  the  Philippine  Islands  into 
citizenship  of  the  United  States,  nor  is  it  intended  to  permanently  annex  said  islands 
as  an  integral  part  of  the  territory  of  the  United  States  ;  but  it  is  the  intention  of  the 
United  States  to  establish  on  said  islands  a  government  suitable  to  the  wants  and  cnn- 
ditions  of  tlie  inhabitants  of  said  islands  to  prepare  thetn  for  local  self-government, 
and  in  due  time  to  make  such  disposition  of  said  islands  as  will  best  promote  the 
interests  of  the  United  States  and  the  inhabitants  of  said  islands."  Cong.  Kec.  55th 
Cong.  3d  Sess.  Vol.  32,  p.  1847. 


670  EFFECTS    OF    WAR   AS    BETWEEN    ENEMIES.       [PART  II. 

it  was  not  intended  to  incorporate  the  inhabitants  of  the  Philippines 
into  citizenship  of  the  United  States,  nor  to  permanently  annex  those 
islands. 

We  need  not  consider  the  force  and  effect  of  a  resolution  of  this  sort, 
if  adopted  by  Congress,  not  like  that  of  April  20,  1898,  in  respect  of 
Cuba,  preliminary  to  the  declaration  of  war,  but  after  title  had  passed 
by  ratified  cession.  It  is  enough  that  this  was  a  joint  resolution  ;  that 
it  was  adopted  by  the  Senate  by  a  vote  of  26  to  22,  not  two  thirds  of  a 
quorum:  and  that  it  is  absolutely  without  legal  significance  on  the 
question  before  us.  The  meaning  of  the  treaty  cannot  be  controlled 
by  subsequent  explanations  of  some  of  those  who  may  have  voted  to 
ratify  it.  What  view  the  House  might  have  taken  as  to  the  intention 
of  the  Senate  in  ratifying  the  treaty  we  are  not  informed,  nor  is  it 
material;  and  if  any  implication  from  the  action  referred  to  could 
properly  be  indulged,  it  would  seem  to  be  that  two  thirds  of  a  quorum 
of  the  Senate  did  not  consent  to  the  ratification  on  the  grounds  indi- 
cated. 

It  is  further  contended  that  a  distinction  exists  in  tliat  while  com- 
plete possession  of  Porto  Rico  was  taken  by  the  United  States,  this  was 
not  so  as  to  the  Philippines,  because  of  the  armed  resistance  of  the 
native  inhabitants  to  a  greater  or  less  extent. 

We  must  decline  to  assume  that  the  government  wishes  thus  to  dis- 
parage the  title  of  the  United  States,  or  to  place  itself  in  the  position 
of  waging  a  war  of  conquest. 

The  sovereignty  of  Spain  over  the  Philippines,  and  possession  under 
claim  of  title  had  existed  for  a  long  series  of  years  prior  to  the  war 
with  the  United  States.  The  fact  that  there  were  insurrections  against 
her,  or  that  uncivilized  tribes  may  have  defied  her  will  did  not  affect 
the  validity  of  her  title.  She  granted  the  islands  to  the  United  States, 
and  the  grantee  in  accepting  them  took  nothing  less  than  the  whole 
grant. 

If  those  in  insurrection  against  Spain  continued  in  insurrection 
against  the  United  States,  the  legal  title  and  possession  of  the  latter 
remained  unaffected. 

We  do  not  understand  that  it  is  claimed  that  in  carrying  on  the 
pending  hostilities  the  government  is  seeking  to  subjugate  the  people 
of  a  foreign  country,  but,  on  the  contrary,  that  it  is  preserving  order 
and  suppressing  insurrection  in  territory  of  the  United  States.  It  fol- 
lows that  the  possession  of  the  United  States  is  adequate  possession 
under  legal  title,  and  this  cannot  be  asserted  for  one  purpose  and 
denied  for  another.  We  dismiss  the  suggested  distinction  as  unten- 
able. 

But  it  is  sought  to  detract  from  the  weight  of  the  ruling  in  De  Lima 


CHAr.  II.]       FOURTEEN   DIAMOND    RINGS    V.    UNITED   STATES.      671 

V.  Bidivell  because  one  of  the  five  justices  concurriiig  in  the  judgment 
in  that  case  concurred  in  the  judgment  in  Downes  v.  Bidivell,  182 
U.  S.  244. 

In  De  Lima  v.  Bidivell,  Porto  Rico  was  held  not  to  be  a  foreign 
country  after  the  cession,  and  that  a  prior  act  exclusively  applicable  to 
foreign  countries  became  inapplicable. 

In  Downes  v.  Bidivell,  the  conclusion  of  a  majority  of  the  court  was 
that  an  act  of  Congress  levying  duties  on  goods  imported  from  Porto 
Kico  into  New  York,  not  in  conformity  with  the  provisions  of  the 
Constitution  in  respect  to  the  imposition  of  duties,  imposts,  and  excises, 
was  valid.  Four  of  the  members  of  the  court  dissented  from  and  five 
concurred,  though  not  on  the  same  grounds,  in  this  conclusion.  The 
justice  who  delivered  the  opinion  in  De  Lima's  case  was  one  of  the 
majority,  and  was  of  opinion  that  although  by  the  cession  Porto  Rico 
ceased  to  be  a  foreign  country,  and  became  a  territory  of  the  United 
States  and  domestic,  yet  that  it  was  merely  "  appurtenant "  territory, 
and  "not  a  part  of  the  United  States  within  the  revenue  clauses  of  the 
Constitution." 

This  view  placed  the  territory,  though  not  foreign,  outside  of  the 
restrictions  applicable  to  interstate  commerce,  and  treated  the  power 
of  Congress,  when  affirmatively  exercised  over  a  territory,  situated  as 
supposed,  as  uncontrolled  by  the  provisions  of  the  Constitution  in 
respect  of  national  taxation.  The  distinction  was  drawn  between  a 
special  act  in  respect  of  the  particular  country,  and  a  general  and 
prior  act  only  applicable  to  counti'ies  foreign  to  ours  in  every=-sense. 
The  latter  was  obliged  to  conform  to  the  rule  of  uniformity,  which 
was  wholly  disregarded  in  the  former. 

The  ruling  in  the  case  of  De  Lima  remained  unaffected,  and  controls 
that  under  consideration.  And  this  is  so  notwithstanding  four  mem- 
bers of  the  majority  in  the  De  Lima  case  were  of  opinion  that  Porto 
Rico  did  not  become  by  the  cession  subjected  to  the  exercise  of  govern- 
mental power  in  the  levy  of  duties  unrestricted  by  constitutional  limi- 
tations. 

Decree  reversed  and  cause  remanded  with  directions  to  quash  the 
information. 

Mr.  Justice  Brown,  concurring  : 

I  concur  in  the  conclusion  of  the  court  in  this  case,  and  in  the 
reasons  given  therefor  in  the  opinion  of  the  Chief  Justice. 

The  case  is  distinguishable  from  De  Lima  v.  Bidwell,  182  U.  S.  1,  in 
but  one  particular,  viz.,  the  Senate  resolution  of  February  G,  1899. 
With  regard  to  this,  I  would  say  that  in  my  view  the  case  Avould  not 
be  essentially  different  if  this  resolution  had  been  adopted  by  a  unani- 
mous vote  of  the  Senate.     To  be  efficacious  such  resolution  must  be 


672  EFFECTS    OF   WAR    AS   BETWEEN   ENEMIES.       [PART  II. 

considered  either  (1)  as  an  amendment  to  the  treaty,  or  (2)  as  a  legis- 
lative act  qualifying  or  modifying  the  treaty.     It  is  neither. 

It  cannot  be  regarded  as  part  of  the  treaty,  since  it  received  neither 
the  approval  of  the  President  nor  the  consent  of  the  other  contracting 
power.  A  treaty  in  its  legal  sense  is  defined  by  Bouvier  as  "  a  com- 
pact made  between  two  or  more  independent  nations  with  a  view  to 
the  public  welfare  "  (  2  Law  Die,  1136),  and  by  Webster  as  "an  agree- 
ment, league,  or  contract  between  two  or  more  nations  or  sovereigns, 
formally  signed  by  commissioners  properly  authorized,  and  solemnly 
ratified  by  the  sovereigns  or  the  supreme  power  of  each  state."  In  its 
essence  it  is  a  contract.  It  differs  from  an  ordinary  contract  only  in 
being  an  agreement  between  independent  states  instead  of  private 
parties.  Foster  v.  Neilson,  2  Pet.  253,  314 ;  Head  Moyiey  Cases,  112 
U.  S.  580.  By  the  Constitution  (art.  2,  sec.  2), the  President  "  shall  have 
power,  by  and  with  the  advice  and  consent  of  the  Senate  to  make 
treaties,  provided  two  thirds  of  the  Senators  present  concur."  Obviously 
the  treaty  must  contain  the  whole  contract  between  the  parties,  and 
the  power  of  the  Senate  is  limited  to  a  ratification  of  such  terms  as 
have  already  been  agreed  upon  between  the  President,  acting  for  the 
United  States,  and  the  commissioners  of  the  other  contracting  power. 
The  Senate  has  no  right  to  ratify  the  treaty  and  introduce  new  terms 
into  it,  which  shall  be  obligatory  upon  the  other  power,  although  it 
may  refuse  its  ratification,  or  make  such  ratification  conditional  upon 
the  adoption  of  amendments  to  the  treaty.  If,  for  instance,  the 
treaty  .with  Spain  had  contained  a  provision  instating  the  inhabitants 
of  the  Philippines  as  citizens  of  the  United  States,  the  Senate  might 
have  refused  to  ratify  it  until  this  provision  was  stricken  out.  But  it 
could  not,  in  my  opinion,  ratify  the  treaty  and  then  adopt  a  resolution 
declaring  it  not  to  be  its  intention  to  admit  the  inhabitants  of  the 
Philippine  Islands  to  the  privileges  of  citizenship  of  the  United  States. 
Such  resolution  would  be  inoperative  as  an  amendment  to  the  treaty, 
since  it  had  not  received  the  assent  of  the  President  or  the  Spanish 
commissioners. 

Allusion  was  made  to  this  question  in  the  New  York  Indians  v. 
United  States,  170  U.  S.  1,  21,  wherein  it  appeared  that,  when  a  treaty 
with  certain  Indian  tribes  was  laid  before  the  Senate  for  ratification, 
several  articles  were  stricken  out,  several  others  amended,  a  new  arti- 
cle added,  and  a  proviso  adopted  that  the  treaty  should  have  no  force 
or  effect  whatever,  until  the  amendment  had  been  submitted  to  the 
tribes,  and  they  had  given  their  free  and  voluntary  assent  thereto. 
This  resolution,  however,  was  not  found  in  the  original  or  in  the  pub- 
lished copy  of  the  treaty,  or  in  the  proclamation  of  the  President, 
which  contained  the  treaty  without  the  amendments.     With  reference 


CHAP,  ir.]       FOURTEEN   DFAMOND   RINGS   V.    UNITED   STATES.      673 

to  tliis  the  court  observed :  ''The  power  to  make  treaties  is  vested  l)y 
the  Constitution  in  the  President  and  the  Senate,  and,  while  this  pro- 
viso was  adopted  by  the  Senate,  there  was  no  evidence  that  it  ever 
received  the  sanction  or  approval  of  the  President.  It  cannot  be  con- 
sidered as  a  legislative  act,  since  the  power  to  legislate  is  vested  iu 
the  President,  Senate,  and  House  of  Representatives.  There  is  some- 
thing, too,  which  shocks  the  conscience  in  the  idea  that  a  treaty  can  be 
put  forth  as  embodying  the  terms  of  an  arrangement  with  a  foreign 
power  or  an  Indian  tribe,  a  material  provision  of  which  is  unknown  to 
one  of  the  contracting  parties,  and  is  kept  in  the  background  to  be 
used  by  the  other  only  when  the  exigencies  of  a  particular  case  may 
demand  it.  The  proviso  appears  never  to  have  been  called  to  the 
attention  of  the  tribes,  who  would  naturally  assume  that  the  treaty 
embodied  in  the  Presidential  proclamation  contained  all  the  terms  of 
the  arrangement." 

In  short,  it  seems  to  me  entirely  clear  that  this  resolution  cannot  be 
considered  a  part  of  the  treaty. 

I  think  it  equally  clear  that  it  cannot  be  treated  as  a  legislative  act, 
though  it  may  be  conceded  that  under  the  decisions  of  this  court  Con- 
gress has  the  power  to  disregard  or  modify  a  treaty  with  a  foreign 
state.     This  was  not  done. 

The  resolution  in  question  was  introduced  as  a  joint  resolution,  but 
it  never  received  the  assent  of  the  House  of  Representatives  or  the 
signature  of  the  President.  While  a  joint  resolution,  when  approved 
by  the  President,  or,  being  disapproved,  is  passed  by  two  thirds  of  each 
House,  has  the  effect  of  a  law  (Const,  art.  1,  sec.  7),  no  such  effect  can 
be  given  to  a  resolution  of  either  House  acting  independently  of  the 
other.  Indeed,  the  above  clause  expressly  requires  concurrent  action 
upon  a  resolution  "  before  the  same  shall  take  effect," 

This  question  was  considered  by  Mr.  Attorney-General  Cushing  in  his 
opinion  on  certain  Resolutions  of  Congress  (6  Ops.  Attys.-Gen.  680), 
in  which  he  held  that  while  joint  resolutions  of  Congress  are  not  dis- 
tinguishable from  bills,  and  have  the  effect  of  law,  separate  resolutions 
of  either  House  of  Congress,  except  in  matters  appertaining  to  their 
own  parliamentary  rights,  have  no  legal  effect  to  constrain  the  action 
of  the  President  or  heads  of  departments.  The  whole  subject  is  there 
elaborately  discussed. 

In  any  view  taken  of  this  resolution  it  appears  to  me  that  it  can  be 
considered  only  as  expressing  the  individual  views  of  the  Senators 
voting  upon  it. 

I  have  no  doubt  the  treaty  might  have  provided,  as  did  the  act  of 
Congress  annexing  Hawaii,  that  the  existing  customs  relations  between 
the  Spanish  possessions  ceded  by  the  treaty  and  the  United  States 

48 


674  EFFECTS   OF   WAR   AS   BETWEEN   ENEMIES.        [PART  II. 

should  remain  unchanged  until  legislation  had  been  had  upon  the  sub- 
ject ;  but  in  the  absence  of  such  provision  the  case  is  clearly  controlled 
by  that  of  De  Lima  v.  Bidivell. 

Mr.  Justice  Gray,  Mr.  Justice  Shiras,  Mr.  Justice  White,  and  Mr. 
Justice  McKenna  dissented,  for  the  reasons  stated  in  tlieir  opinions  in 
De  Lima  v.  Bidwell,  182  U.  S.  1,  200-220;  in  Dooley  v.  United  States, 
182  U.  S.  222,  235-243 ;  and  in  Downes  v.  Bidwell,  182  U.  S.  244, 287- 
347.^ 

1  De  Lima  v.  Bidwell,  1900,  182  U.  S.  1,  is  the  present  leading  case  on  this  subject ; 
its  length  prevents  its  insertion. 

Leaving  out  of  question  its  importance  in  constitutional  and  international  law,  it 
should  be  consulted  for  a  collation  and  examination  of  the  authorities.  In  Dooleij 
V.  U.  S.,  1900,  182  U.  S.  222,  and  Armstrorifj  v.  U.  S.,  id.  248,  it  was  held  (Justices 
White,  Gray,  Shiras,  and  McKenna  dissenting)  that  duties  upon  imports  from  the  U.  S. 
to  Porto  Rico,  collected  by  Military  Commander  and  the  President  as  Commander- 
in-Chief,  from  time  of  taking  possession  of  the  island  until  ratification  of  the  treaty 
of  peace,  were  legally  exacted  under  war  power,  but  the  right  to  exact  duties  so 
imposed  ceased  with  the  ratification  of  the  treaty.  In  Doivnes  v.  U.  S.,  1901,  182 
IT  S.  244,  it  was  held  (Fuller,  C.  J.,  Harlan,  Brewer,  and  Peckham,  JJ.,  dissent- 
ing) that  the  Island  of  Porto  Rico  is  "a  territory  appurtenant  and  belonging  to  the 
United  States  but  not  a  part  of  the  United  States  within  the  reveiuie  clauses 
of  the  Constitution;  that  the  Foraker  act  (April  12,  1900)  is  constitutional,  so  far 
as  it  imposes  duties  upon  imports  from  such  islands  and  that  the  plaintiff  cannot 
recover  back  the  duties  exacted  in  this  case."  Reaffirmed  and  applied  in  Dooley  v. 
U.  S.,  1901,  18.3  U.  S.  151.  As  the  judgment  in  Doivnes  v.  U.  S.,  of  vital  importance 
to  the  United  States,  deals  largely  with  (the  powers  of  Congress  over  the  internal 
organization  and  government  of  )  domestic  territory  of  the  United  States,  no  abstract 
is  here  attempted.  In  Hatts  v.  Neiv  York  (J-  Steamshij)  Co.,  1901,  182  U.  S.  392,  it  was 
held  that  vessels  plying  between  Porto  Rican  ports  and  the  U.  S.  mainland,  engaged 
in  "coasting,"  /.  e.  domestic,  not  foreign  trade. 

The  following  are  some  leading  foreign  cases  on  the  subject :  In  the  case  of  Guerin, 
Court  of  Appeal  of  Nancy,  1872  (Dalloz,  1872,  II.  p.  185),  it  was  held  that  tlie  occupa- 
tion of  a  department  of  France  by  the  troops  of  the  enemy  does  not  suspend  therein 
the  civil  and  criminal  laws  of  France ;  that  these  continue  obligatory  upon  all  French- 
men so  long  at  least  as  they  have  not  been  expressly  and  specifically  abrogated  by  the 
exigencies  of  the  war.  This  rule  was  enforced  in  respect  to  tlie  custom  laws,  and  even 
in  that  part  of  the  occupied  territory  where  the  Germans  collected  and  appropriated 
the  duties.     Dalloz,  1872,  II.  185,  notes  3,  4. 

In  Mohr  4-  Haas  v.  Halzfeld,  Court  of  Appeals  of  Nancy,  1872,  Dalloz,  1872,  II. 
p.  229,  it  was  held  that  the  military  occupation  of  a  territory  confers  upon  the  invader 
tiie  right  only  to  the  usufruct  and  revenues  of  the  public  domain ;  that  the  French 
courts  will  not  recognize  as  valid  the  sale  of  old  trees  (during  the  war  of  1870-71)  on 
the  public  domain  which  were  reserved  at  the  time  of  the  annual  cutting ;  that  they 
are  as  inalienable  as  the  soil  of  the  forest  itself.  Cf.  New  Orleans  v.  Steamship  Co.,  20 
Wall.  387,  for  an  exposition  of  American  policy  towards  the  Southern  States,  and  for 
the  attitude  to  Cuba  the  following  two  citations  :  "  It  is  understood  that  any  obliga- 
tions assumed  in  this  treaty  by  the  United  States  with  respect  to  Cuba  are  limited  to 
the  time  of  its  occupancy  thereof;  but  it  will  upon  the  termination  of  such  occupancy 


CHAP.  II.J  BAIN    V.    SPEEDWELL.  675 


Section  38.  —  Termination  of  War. 


BAIN  V.  SPEEDWELL. 
Federal  Court  of  Appeals,   1784. 
(2  Dallas,  40.) 

This  was  an  appeal  from  the  Admiralty  of  the  State  of  Rhode 
Island,  where  the  schooner  had  been  condemned  as  prize  ;  and  the 
record  was  submitted  to  the  decision  of  the  court,  without  argument. 
On  the  24th  of  May,  1784,  Griffin,  Read,  and  Lowell,  the  presiding 
commissioners,  delivered  the  following  judgment: 

By  the  court.     It  appearing,  by   the   inspection  of  the  record,  that 
the   schooner   in   question  was  captured    from  the  British,  since  the 
operation  of  the  preliminary  articles  of  peace  (to  wit,  on  the 
day  of  )  the  condemnation  cannot  be  sustained. 

Decree  reversed.^ 

advise  anv  Government  establislied  in  the  island  to  assume  the  same  obligations." 
Art.  XVI.  Ireaty  with  Spain,  30  U.  S.  Statutes  at  Large,  1754-176L 

"  That  no  property,  franchises,  or  concessions  of  any  kind  wliatever  shall  be  granted 
bv  United  States,  or  by  any  military  or  other  authority  whatever,  in  the  Island  of 
Cuba  during  the  occupation  thereof  by  the  United  States."     30  id.  1064,  p.  1074. 

Jo  Vtllasseque's  Case,  Cour  de  Cassation,  1818  (Ortolan:  Diplomatic  de  la  Mer.,  2d 
ed..  Vol.  I  324,  it  was  decided  that  a  crime  committed  by  a  French  citizen  in  Spanish 
territory,  occupied  and  administered  by  the  French  army,  was  a  crime  committed  in  a 
foreign  country.     Cf.  Neely  v.  Heyihel,  1901,  180  U.  S.  109. 

HessL'  Cassel  was  conquered  by  tlie  First  Napoleon  in  1806,  and  remained  for  about 
a  year  under  his  immediate  control;  when  it  was  annexed  to  the  new  kingdom  of 
Westphalia,  of  whicli  it  remained  a  part  until  after  the  battle  of  Leipzig  in  1813.  It 
was  held  in  the  Elector  of  Hesse  Cassel's  Case,  that  debts  due  the  Elector  were  validly 
discharged  by  payment  to  Napoleon  and  receiving  from  him  a  quittance  in  full.  (III. 
Phillimore's  International  Law,  p.  841 ;  Magoon,  Military  Occupation,  2G2-263  ) 

For  an  interesting  and  early  case  on  this  matter  of  payment,  see  discussion  of  occu- 
pation of  Naples  by  Charles  VIIL  1425  (III.  riiillimore,  Int.  Law,  p.  838).  —Ed. 

i  The  The'tis  was  captured  twenty-nine  days  after  the  signing  of  the  treaty 
of  Luneville,  Feb.  9,  1801,  but  eight  days  before  its  ratification.  It  was  restored  on 
the  ground  of  illegal  capture  in  time  of  peace.  Conseil  des  Prises,  1801,  1  Pistoye  et 
Daverdy,  148.  — Ed. 


676  EFFECTS    OF    \YAB.   AS   BETWEEN    ENE:SUES.       [PAET  H. 


THE  "MENTOR." 
High  Court  of   Admiealty,  1799. 

(1  C.  Robinson,  179.) 

Judgment. —  Sir  "W.  Scott  :  — 

The  circumstances  of  the  ease,  as  far  as  it  is  necessary  to  state 
them,  are  these  :  The  ship,  being  American  property,  was  on  a  voyage 
from  Havana  to  Philadelphia,  in  1783 ;  off  the  Delaware  she  was 
pursued  by  his  Majesty's  ships,  the  Centurion  and  the  Vulture,  then 
cruising  off  that  river,  under  the  command  of  the  admiral  on  that 
station,  Admiral  Digby.  All  parties  were  in  complete  ignorance  of 
the  cessation  of  hostilities  ;  not  only  the  persons  on  board  the  King's 
ships,  but  the  Americans,  as  well  those  on  the  shore,  as  those  on 
board  the  vessel.  In  the  pursuit,  shots  were  fired  on  both  sides,  and, 
it  is  alleged  on  the  part  of  the  British,  that  the  ship  was  set  on  fire 
by  her  own  crew,  who  took  to  the  shore. 

Xow,  I  incline  to  assent  to  Dr.  Lawrence's  position,  that  if  an  act  of 
mischief  was  done  by  the  King's  officers,  though  through  ignorance, 
in  a  place  where  no  act  of  hostility  ought  to  have  been  exercised,  it 
does  not  necessarily  follow  that  mere  ignorance  of  that  fact  would 
protect  the  officers  from  civil  responsibility.  If  by  articles,  a  place  or 
district  was  put  under  the  King's  peace,  and  an  act  of  hostility  was 
afterwards  committed  therein,  the  injured  party  might  have  a  right  to 
resort  to  a  court  of  prize  to  show  that  he  had  been  injured  by  this 
breach  of  the  peace,  and  was  entitled  to  compensation  ;  and  if  the 
officer  acted  through  ignorance,  his  own  government  must  protect 
him  :  for  it  is  the  duty  of  governments,  if  they  put  a  certain  district 
within  the  King's  peace,  to  take  care  that  due  notice  shall  be  given  to 
those  persons  by  whose  conduct  that  peace  is  to  be  maintained  ;  and 
if  no  such  notice  has  been  given,  nor  due  diligence  used  to  give  it, 
and  a  breach  of  .the  peace  is  committed  through  the  ignorance  of 
those  persons,  they  are  to  be  borne  harmless,  at  the  expense  of  that 
government  whose  duty  it  was  to  have  given  that  notice.^ 

1  The  statement  of  facts  is  omitted  and  onlv  a  part  of  tlie  judgment  is  given.  Tliis 
case  had  been  in  the  courts  ten  or  more  years  previously,  but  no  records  of  tiie  pro- 
ceedings were  produced.  On  tliis  account,  and  from  tlie  furtlier  fact  tliat  tlie  present 
action  was  brouglit  against  tlie  admiral  of  the  station,  instead  of  the  actual  wrongdoer, 
the  court  refused  to  give  relief. 

In  the  Treaty  of  Amiens,  1802,  between  Great  Britain  and  France,  it  was  stipulated 
that  two  months  should  be  allowed  for  the  news  of  the  close  of  tlie  war  to  reach 


CHAP.    II.]  THE   SCHOONER    "  JOHN."  677 


THE   SCHOONER  "JOHN." 

Commission    for    Settlement    of    Claims    Between    the    United 
States  and   Great  Britain,  February  8,  1853. 

(Report  of  the  Commission,  427.) 

Upham,  United  States  Commissioner : 

In  the  able  argnment  addressed  to  ns  by  her  Majesty's  counsel,  the 
British  a^ent,  some  stress  has  been  laid  on  the  decision  of  Sir  William 
Scott  (2  Dodson.  336)  on  a  suit  brought  against  the  commander  of  the 
Talbot  for  the  capture  of  the  John;  and  that  authority  is  considered 
conclusive  of  this  claim. 

But,  in  that  case,  the  learned  judge  declined  determining  whether 
or  not  the  claimant  had  a  remedy  elsewhere;  he  only  decided,  for 
reasons  which  he  gives  at  length,  that  the  captor  should  be  personally 
exonerated. 

On  determining  this  question,  he  says  :  "I  certainU'  go  no  further 
than  the  expressions  used  b}'  me  warrant,  that  this  individual  captor 
is  not  liable  to  this  individual  sufferer." 

''That  does  not  exclude  a  liability  elsewhere,  if  it  exists.  Whether 
there  be  such  a  liability  in  the  government  is  a  question  I  am  not 
called  upon  to  examine  ;  I  have  neither  the  proper  parties  nor  the 
evidence  before  me.  It  is  sufficient  to  observe,  upon  that  matter,  that 
there  may  be  such  a  liability  ;  there  doubtless  would  be,  if  the  govern- 
ment had  not  made  due  diligence  in  advertising  the  cessation  of 
hostilities,  in  the  quarters  and  at  the  periods  stipulated,  if  that  were 
practicable." 

"  Where  property,  captured  after  peace  has  taken  effect,  is  lost  by 
mere  chance,  without  any  fault  on  the  part  of  the  captor,  whether  an 
obligation  is  incurred  to  restore  in  value  what  has  been  taken  away  by 

their  respective  cruiser  in  the  West  Indies.  A  British  vessel  was  captured  before  the 
expiration  of  tlie  two  months,  but  after  news  of  the  peace  iiad  reached  tiie  captors, 
througli  British  sources,  the  sliip  was  restored.  The  y^^mph,  1801,  Conseil  des  Prises, 
Merlin:  Repertoire  de  Jurisprudence,  Vol.  25,  p.  131. 

Tlie  similar  case  of  The  Swineherd  (le  Porcher),  1  Pistoye  et  Duverdy,  140,  was  tliat 
of  an  English  vessel  captured  in  the  Indian  seas  by  a  French  privateer,  after  the 
signing  of  tlie  Treaty  of  Amiens,  but  before  the  expiration  of  the  five  months  allowed 
for  the  news  of  the  peace  to  reach  those  seas. 

In  this  case  the  English  ship  had  been  fitted  out  as  a  privateer.  She  sailed  from 
Calcutta  after  the  news  of  the  peace  had  reached  that  place,  and  informed  the  captor 
of  that  fact.  It  was  contended  further  by  the  claimant  that  the  captor  had  received 
notice  of  the  peace  from  a  Portuguese  vessel.  On  tiie  other  liand,  it  was  held  by  the 
Conseil  des  Prises  that  no  sufficient  notice  of  peace  had  reached  the  captor.  See  Hall's 
Int.  Law,  582,  583.  —  Ed. 


678  EFFECTS   OF   WAR   AS   BETWEEN  ENEMIES.       [PART  II. 

mere  misfortune,  the  terms  of  the  contract  have  not  specifically  pro- 
vided for;  and  just  principle  seems  to  point  another  way  ;  that,  how- 
ever, is  not  the  question  before  me  for  my  decision."  Schooner  John, 
Beeh,  Master,  2  Dodson,  336. 

This  case  conflicts  with  the  opinion  of  the  same  learned  judge  in 
The  Mentor,  1  Robinson,  183.  He  there  says,  "that  the  seizure  of  a 
vessel  is  a  belligerent  right  which  is  not  exercisable  in  time  of  peace. 
When  there  is  peace,  a  seizure,  j'^re  belli,  is  a  wrongful  act,  and  the 
injured  party  is  entitled  to  restitution  and  compensation."  He  further 
says,  "It  is  not  so  clear  that  the  captor  is  liable  to  costs  and  damages, 
when  peace  has  not  been  notified.  The  better  opinion  seems  to  be, 
that  the  captor  is  liable  to  costs  and  damages,  and  entitled  to  indem- 
nification from  his  government,  whose  duty  it  was  to  have  given  notice." 

Both  these  cases  sustain  this  point,  that,  when  there  is  a  want  of 
due  diligence,  in  advertising  the  cessation  of  hostilities,  the  injured 
party  is  clearly  entitled  to  indemnification  ;  and  Vattel  says,  also, 
"  that  those  who  shall,  through  their  own  fault,  remain  ignorant  of  the 
publication  of  the  truce,  would  be  bound  to  repair  any  damage  they 
may  have  caused  contrary  to  its  tenor."     Vattel,  bk.  3,  ch.  16. 

There  seems  to  be  no  doubt  that  the  principle,  thus  laid  down,  is 
correct.  But  what  constitutes  due  diligence,  under  such  circumstances, 
is  a  question  at  times  of  difficult  determination.  It  is,  therefore,  ex- 
ceedingly desirable  that  it  should  be  settled  by  the  parties  in  advance. 
Vattel  says,  in  the  same  section,  "  in  order  as  far  as  possible  to  avoid 
any  difficulty,"  on  this  point,  "it  is  usual  with  sovereigns,  in  their 
truces,  as  well  as  treaties  of  peace,  to  assign  different  periods  for  the 
cessation  of  hostilities  according  to  the  situation  and  distance  of 
places." 

The  question  then  arises,  whether  this  assignment  of  different  periods 
for  the  cessation  of  hostilities,  according  to  the  situation  and  distance 
of  places,  was  not  designed  by  the  parties  to  establish  the  time  to  be 
holden  as  reasonable  notice  within  such  limits.  Such  clearly  is  the 
ground  assigned  by  Vattel  for  such  provisions  in  treaties.  What  would 
be  reasonable,  can  be  determined  just  as  well  before  the  treaty  as  after, 
and  the  whole  tenor  of  the  treaty,  in  this  case,  goes  to  show  that  the 
contracting  parties  had  this  question  in  view,  in  establishing  the  various 
periods  within  which  peace  should  take  place  in  different  localities. 

The  treaty  provides  that,  "  immediately  after  ratification,  orders 
shall  be  sent  to  the  armies,  squadrons,  officers,  subjects,  and  citizens 
of  the  two  powers,  to  cease  from  all  hostilities;  and,  to  prevent  all 
causes  of  complaint  which  may  arise  on  account  of  prizes,  which  may 
be  taken  at  sea  after  said  ratification,  it  is  reciprocally  agreed,  that  all 
vessels  and  effects,  which  may  be  taken  after  the  space  of  twelve  days 


CHAP.  II.]  THE   SCHOONER    "  JOHN."  679 

from  the  said  ratification,  upon  all  ports  of  the  coast  of  North  America, 
from  the  latitude  of  23°  north,  to  the  latitude  of  50°  north,  and  as  far 
eastward  in  the  Atlantic  ocean  as  the  3G°  of  west  longitude  from  the 
meridian  of  Greenwich,  shall  be  restored  on  each  side ;  that  the  time 
shall  be  thirty  days  in  all  other  parts  of  the  Atlantic  ocean,  north  of 
the  equator,  and  the  same  time  for  the  British  and  Irish  channels,  for 
the  Gulf  of  Mexico,  and  all  parts  of  the  West  Indies;  forty  days  for 
the  North  Seas,  for  the  Baltic,  and  for  all  parts  of  the  Mediterranean ; 
sixty  days  for  the  Atlantic  ocean,  south  of  the  equator,  as  far  as  th.3 
latitude  of  the  Cape  of  Good  Hope;  ninety  days  for  every  part  of  the 
world  south  of  the  equator,  and  one  hundred  and  twenty  days  for  all 
the  other  parts  of  the  world  without  exception."  United  States 
Statutes  at  Large,  Vol.  8,  p.  219.  These  several  periods  were  un-  | 
doubtedly  agreed  upon  as  equivalent  to  notice  that  peace  existed  within  ' 
the  prescribed  limits.  It  cannot  be  supposed  that  the  contending 
parties  designed  to  append  to  these  periods  a  further  indefinite,  un- 
certain time,  as  to  what  should  constitute  due  diligence  in  giving  notice, 
or  to  restrain  or  limit  the  fact  in  its  consequences,  that  peace  should 
exist  at  the  times  named. 

After  the  periods  thus  agreed  upon,  the  obligation  to  cease  from 
hostilities  was  imperative. 

Such  being  the  case,  we  have  the  true  starting-point  from  which  to 
consider  the  question  of  the  respective  rights  of  the  parties.  It  is 
manifest  that  collisions  might  then  occur  without  the  imputation  of 
any  wilful  wrong  in  the  violation  of  the  compact  entered  into.  The 
injury  would,  however,  exist,  and  the  actual  loss  sustained  should,  on 
every  principle  of  equity  and  justice,  as  well  as  of  compact,  be  fully  met. 

The  stipulation  was,  therefore,  entered  into  by  the  parties,  that  "  all 
vessels  and  effects  "  that  should  be  taken  after  the  several  times  speci- 
fied "should  be  restored."  The  question  then  arises,  what  interpre- 
tation we  shall  place  on  this  provision  ?  Does  it  mean  that  vessel 
property  merely  shall  be  returned,  and  where  this  has  become  im- 
practicable that  no  restitution  or  satisfaction  shall  be  had  ?  I  cannot 
believe  that  such  was  the  intent  of  the  parties.  They  acknowledge 
themselves  bound  by  a  constructive  notice  of  the  peace,  and  it  was 
their  own  fault  that  they  did  not  take  time  enough,  or  did  not  use 
diligence  enough  to  give  actual  notice  of  the  peace  '*to  their  armies, 
squadrons,  officers,  subjects,  and  citizens,"  as  was  specially  provided 
should  be  done  by  the  treaty. 

Under  such  circumstances,  the  doctrine  of  Vattel,  adopted  by  Sir 
William  Scott,  applies,  "  that  those  who  through  their  own  fault  re- 
main ignorant  of  the  publication  of  the  truce  are  bound  to  repair  any 
damage  they  may  have  caused  contrary  to  its  tenor." 


680  EFFECTS   OF    WAR    AS    BETWEEN    ENEMIES.       [PART  II. 

The  party  injured  is  iu  the  same  situation  as  a  neutral  whose  ves- 
sel has  been  seized  and  destroyed  as  the  property  of  a  hostile  power, 
Avhere  it  is  holden  the  neutral  can  only  be  justified  by  a  full  restitu- 
tion in  value.     1  Wildman,  Vol.  2,  p.  175. 

There  is  no  other  measure  of  damage  that  justly  meets  the  require- 
ments of  the  case.  The  treaty  provides  not  only  that  "all  vessels," 
but  also  "  their  effects,"  which  may  be  taken,  after  a  certain  specified 
number  of  days,  within  certain  described  limits,  shall  be  restored  on 
either  side.  But  if  the  effects  of  a  vessel,  consisting  of  provisions  or 
other  articles,  are  taken  and  consumed,  or  are  otherwise  disposed  of,  so 
they  cannot  be  restored  specifically,  it  will  hardly  be  contended  that 
no  remuneration  is  to  be  made. 

If  this  be  so,  the  rule  would  equally  follow  in  relation  to  the  vessel. 
Restoration  and  restitution  are  synonymous.  One  meaning  of  the 
word  "  restore,"  as  laid  down  by  Webster  is,  "to  make  restitution  or 
satisfaction  for  a  thing  taken,  by  returning  something  else,  or  some- 
thing of  different  value,"  and  this  is  the  meaning  which  should  be 
rightfully  attached  to  the  word  in  the  treaty. 

i  do  not  understand  that  this  is,  in  realitj^,  denied;  biit  the  position 
is  taken  by  Great  Britain  in  this  case,  that  she  is  relieved  from  re- 
storing the  vessel,  for  the  reason  that  it  was  subsequently  cast  away 
and  lost  by  the  act  of  God,  and  no  one  is  accountable. 

If  the  case  can  be  brought  within  this  principle  the  excuse  might 
avail,  but  there  are  circumstances  connected  with  it  that  preclude  such 
defence.  No  one  can  plead  the  destruction  of  property  as  the  act  of 
God,  who  is  Avrongfully  in  the  use  and  control  of  such  property.  He 
is  a  wrong-doer  from  the  outset;  he  has  converted  the  property  from 
the  instant  of  possession,  and  the  subsequent  calamity  which  may 
happen,  however  inevitable  it  may  be,  is  no  excuse  for  its  loss. 

The  John  was  in  the  rightful  pursuit  of  a  lawful  voyage,  at  a  time  and 
place  when  peace  existed  by  the  express  stipulations  of  the  parties,  after 
t.iking  such  period  for  notice  as  they  held  that  the  case  required. 

She  had  pursued  her  course  northwardly  some  four  or  five  hundred 
miles  out  from  harbor,  on  her  way  to  her  destined  port.  She  was 
there  seized,  placed  under  the  charge  of  new  men,  and  her  course  was 
directly  reversed,  until  she  was  taken  back  to  the  West  Indies,  and 
through  mismanagement,  or  misadventure,  was  run  on  shore  and  lost. 

It  may  have  been  the  ordinary  accident  of  the  seas,  or  may  not ; 
but,  in  any  event,  she  was  taken  there  without  right,  and  subjected  to 
risks  to  which  she  was  not  legally  and  justly  liable.  The  plea  that 
she  was  lost  by  the  act  of  God  i.:i  not,  under  the  circumstances,  admis- 
sible. The  vessel  itself  cannot  be  restored,  but  such  compensation  and 
restitution  should  be  made  as  the  nature  of  the  case  admits  of. 


CHAP.  II.]         "  NEDSTRA    SEXORA    DE    LOS    DOLORES."  681 

111  the  argument,  considerable  stress  has  been  laid  on  a  quotation  in 
Kent  and  Wheaton,  said  to  be  founded  on  Grotius,  that  where  collisions 
arise  after  peace  exists,  the  governments  "  are  not  amenable  in  dam- 
ages, but  it  is  their  duty  to  restore  what  has  been  captured,  but  not 
destroj'ed."  The  citation  from  Grotius  is,  however,  erroneous.  He 
merely  says,  in  the  section  referred  to,  that  if  any  acts  be  done,  in 
violation  of  the  truce,  before  notice  can  be  given,  "the  government 
will  not  be  liable  to  punishment,  but  the  contracting  parties  will  be 
bound  to  make  good  the  damage."  Whewell's  Grotius,  lib.  3,  ch. 
21,  §  5. 

What  shall  be  the  precise  effect,  as  a  matter  of  notice,  where  dif- 
ferent periods  of  time  are  stipulated  in  which  peace  shall  take  place, 
does  not  seem  to  have  been  fully  considered  and  settled.  If  it  shall  be' 
held  as  an  acknowledgment  of  notice,  then  every  subsequent  act  of 
violation  of  it  is  the  act  of  a  wrong-doer,  and  full  compensation  fol- 
lows of  necessity.  I  can  see  no  possible  mode  of  avoiding  the  justness 
or  soundness  of  the  construction  at  which  we  have  arrived,  but  think 
it  should  prevail  on  every  ground  of  public  policy  and  right  interpre- 
tation of  international  compacts  of  this  character. 

I  am  happy  to  say  that  my  colleague,  though  he  hesitates  somewhat 
as  to  the  views  presented,  waives  his  objection  to  the  allowance  of  the 
claim,  except  on  the  score  of  interest,  and  this  question  is  to  be 
submitted  to  the  umpire. 

Interest  was  allowed.^ 


"NEUSTEA   SENORA  DE   LOS   DOLORES." 
High  Court  of  Admiralty,   1809. 

(Edwards,  60.) 

This  was  the  case  of  a  Spanish  ship  which  had  been  captured  before 
Spanish  hostilities,  and  restored  with  costs  and  damages  ;  but  no  further 
proceedings  took  place  at  the  time,  in  consequence  of  the  breaking  out 
of  the  war  between  the  two  countries.  An  application  was  now  made 
to  the  court  for  a  reference  to  the  registrar  and  merchants,  on  the 
ground  that  hostilities  having  ceased,  the  Spanish  claimant  was  en- 
titled to  the  benefit  of  the  former  decree  for  costs  and  damages. 

^  For  a  very  careful  and  elaborate  consideration  of  tlie  captor's  liability  to  Mie 
claimant,  in  cases  of  probable  cause  and  unlawful  capture,  see  T.  Peniberton  Leigii's 
[Lord  Kiiiffsdown's]  judgment  in  The  Osfee,  1855,  9  Moore,  P.  C.  150.  This  case  should 
likewise  be  considered  in  connection  with  §48  on  Prize  Courts. — Eu. 


682  EFFECTS    OF    WAR   AS    BETWEEN    ENEMIES.       [PART  U. 

Judgment.  —  Sir  William  Scott:  — 

I  am  clearly  of  the  opinion  that  the  judgment  is  not  sustainable;  it 
is  true  that  the  intervention  of  hostilities  puts  the  property  of  the 
enemy  in  such  a  situation  that  confiscation  may  ensue,  but  unless  some 
step  is  taken  for  that  purpose,  unless  there  is  some  legal  declaration 
of  the  forfeiture,  the  right  of  the  owner  revives  on  the  return  of  peace. 
This  is  an  acknowledged  principle  in  the  Courts  of  Common  Law, 
borrowed,  in  all  probability,  from  the  general  law  of  nations,  and  I 
se3  no  reason  for  any  distinction  here.  We  know  that,  in  captures  at 
sea,  the  general  law  is,  that  the  bringing  iiifra  pr'a'Jidia,  and  even  a 
sentence  of  condemnation,  is  necessary  to  convert  the  property  ;  and 
although  in  some  instances  positive  institutions  have  determined  that 
a  possession  of  a  certain  number  of  hours  is  sufficient,  yet  this  proceeds 
upon  the  ground  that  a  possession  of  so  many  hours  is  an  evidence  of 
firm  possession.  Here  there  was  no  bodily  possession,  nor  indeed  could 
there  be;  but  still  some  judicial  act  might  have  been  done  declaratory 
of  the  forfeiture  to  the  Crown  of  those  rights  which  vested  in  the 
claimant  under  the  decree  for  costs  and  damages.  It  appears,  how- 
ever, that  no  step  was  taken  for  this  purpose  on  the  part  of  the  Crown ; 
and  I  am,  therefore,  of  the  opinion  that  the  rights  of  the  Spanish  pro- 
prietor do  revive,  and  I  refer  it  to  the  registrar  and  merchants  to 
ascertain  the  amount  of  the  compensation  to  which  he  is  entitled  under 
the  decree.^ 


THE    -'PROTECTOR." 

Supreme  Court  of  the  United  States,   1871. 

(12    Wallace,  700.) 

The  question  in  this  case  was  whether  the  suit  was  barred  by  the 
statute  of  limitations  in  Alabama.  As  the  statute  did  not  run  during 
the  period  of  the  war,  it  was  necessary  to  determine  precisely  the 
dates  of  beginning  and  end  of  the  war. 

Judgment, — Chase,  C.  J. : — 

"The  question,  in  the  present  case  is,  when  did  the  rebellion  begin 
and  end  ?  In  other  words,  what  space  of  time  must  be  considered 
as  excepted  from  the  operation  of  the  statute  of  limitations  by  the 
war  of  the  rebellion  ? 

"  Acts  of  liostility  l)y  the  insurgents  occurred  at  periods  so  various, 
and  of  such  different  degrees  of  importance,  and  in  parts  of   the 

1  Compare  The  Schooner  Sophie,  1805,  6  C.  Rob.  138,  in  wliich  the  defective  title 
of  the  neutral  purchaser  was  cured  by  an  intervening  peace.  —  Ed. 


CHAP.  II.]  THE    "  TROTECTOPw"  683 

country  so  remote  from  each  other,  both  at  the  commencement  and  the 
close  of  the  late  civil  war,  that  it  would  be  difficult,  if  not  impossible,  r 
to  say  on  what  precise  day  it  began  or  terminated.  It  is  necessary,  { 
therefore,  to  refer  to  some  public  act  of  the  political  departments  of 
the  government  to  fix  the  dates ;  and,  for  obvious  reasons,  those  of 
the  executive  department,  which  may  be,  and,  in  fact,  was,  at  the 
commencement  of  hostilities,  obliged  to  act  during  the  recess  of  Con- 
gress, must  be  taken. 

"  The  proclamation  of  intended  blockade  by  the  President  may, 
therefore,  be  assumed  as  marking  the  first  of  these  dates,  and  the 
proclamation  that  the  war  had  closed,  as  marking  the  second.  But  j 
the  war  did  not  begin  or  close  at  the  same  time  m  all  the  States. ' 
There  were  two  proclamations  of  intended  blockade  :  the  first  of  the 
19th  of  April,  1861  (12  Stat,  at  Large,  1258),  embracing  the  States 
of  South  Carolina,  Georgia,  Alabama,  Florida,  Mississippi,  Louisiana 
and  Texas;  the  second,  of  the  27th  of  April,  1861  (12  Stat,  at  L., 
1259),  embracing  the  States  of  Virginia,  and  North  Carolina ;  and 
there  were  two  proclamations  declaring  that  the  war  had  closed ;  one 
issued  on  the  2d  of  April,  1866,  (14  Stat,  at  Large,  811),  embracing 
the  States  of  Virginia,  North  Carolina,  South  Carolina,  Georgia,  Flor- 
ida, Mississippi,  Tennessee,  Alabama,  Louisiana,  and  Arkansas,  and 
the  other  issued  on  the  20th  of  August,  1866  (13  Stat,  at  Large, 
814),  embracing  the  State  of  Texas. 

"  In  the  absence  of  more  certain  criteria,  of  equally  general  appli- 
cation, we  must  take  the  dates  of  these  proclamations  as  ascertain- 
ing the  commencement  and  the  close  of  the  war  in  the  states  men- 
tioned in  them.  Applying  this  rule  to  the  case  before  us,  Ave  find 
that  the  war  began  in  Alabama  on  the  19th  of  April,  1861,  and  ended 
on  the  2d  of  April,  1866.  More  than  five  years,  therefore,  had 
elapsed  from  the  close  of  the  war  till  the  17th  of  May,  1871,  when 
this  appeal  was  brought.     The  motion  to  dismiss,  therefore,  must  be 

"  Granted."  ^ 

1  See  Broivn  v.  Hiatts,  1872,  15  Wallace,  177. 

In  tlie  case  of  Philips  v.  Hatch,  1  Dillon,  571  (1871),  the  United  States  Circuit  Court 
for  Iowa  held  that  a  contract  entered  into  in  the  spring  of  1866  between  a  resident  of 
the  State  of  Iowa  and  a  resident  of  the  State  of  Texas,  was  void  as  a  contract  between 
enemies.  —  Ed. 


CHAPTER  III. 
RELATIONS   BETWEEN   BELLIGERENTS   AND   NEUTRALS. 


Section  39.  —  Belligekent  Capture  in  Neutral  Waters. 

THE   "ANNA." 

High  Court  of  Admiralty,  1805. 

(5  C.  Robinson,  373.) 

This  was  the  case  of  a  ship  under  American  colors,  with  a  cargo  of 
logwood,  and  about  13,000  dollars  on  board,  bound  from  the  Spanish 
main  to  New  Orleans,  and  captured  by  the  Minerva  privateer  near 
the  mouth  of  the  river  Mississippi.  A  claim  was  given  under  the 
direction  of  the  American  Minister  for  the  ship  and  cargo,  as  taken 
within  the  territory  of  the  United  States,  at  the  distance  of  a  mile 
and  a  half  from  the  western  shore  of  the  principal  entrance  of  the 
Mississippi,  and  within  view  of  a  port  protected  by  a  gun,  and  where 
is  stationed  an  officer  of  the  United  States. 
Judgment.  —  Sir  W.  Scott  :  ^  — 

"  When  the  ship  was  brought  into  this  country  a  claim  was  given 
of  a  grave  nature,  alleging  a  violation  of  the  territory  of  the  United 
States  of  America.  This  great  leading  fact  has  very  properly  been 
made  a  matter  of  much  discussion,  and  charts  have  been  laid  before 
the  court  to  show  the  place  of  capture,  though  with  different  repre- 
sentations from  the  adverse  parties.  The  capture  was  made,  it 
seems,  at  the  mouth  of  the  river  Mississippi,  and,  as  it  is  contended 
in  the  claim,  within  the  boundaries  of  the  United  States.  We  all 
know  that  the  rule  of  law  on  this  subject  is  '  terrse  dominium  finitur, 
ubi  finitur  armorum  vis,'  and  since  the  introduction  of  fire-arms 
that  distance  has  usually  been  recognized  to  be  about  three  miles 
from  tlie  shore.  But  it  so  happens  in  this  case,  that  a  question 
arises  as  to  what  is  to  be  deemed  the  shore,  since  there  are  a  number 
of  little  mud  islands  composed  of  earth  and  trees  drifted  down  by 
tlie  river,  which  form  a  kind  of  portico  to  the  main-land.  It  is  con- 
tended that  these  are  not  to  be  considered  as  any  part  of  the  terri- 
tory of  America,  that  they  are  a  sort  of  '  no  man's  land,'  not  of  con- 
1  Part  of  the  judgment  of  this  remarkable  and  learned  judge  is  omitted.  — Ed. 


CHAP.  III.]  THE   "ANNA."  685 

sistency  enough  to  support  the  purposes  of  life,  uninhabited,  and  re- 
sorted to,  only,  for  shooting  and  taking  birds'  nests.  It  is  argued 
that  the  line  of  territoi-y  is  to  be  taken  only  from  the  Balise,  which 
is  a  fort  raised  on  made  land  by  the  former  Spanish  possessors.  I 
am  of  a  different  opinion ;  I  tliink  that  the  protection  of  territory  is 
to  be  reckoned  from  these  islands ;  and  that  they  are  the  natural 
appendages  of  the  coast  on  which  they  border,  and  from  which,  in- 
deed, they  are  formed.  Their  elements  are  derived  immediately 
from  the  territory,  and  on  the  principle  of  alluvium  and  increment, 
on  which  so  much  is  to  be  found  in  the  books  of  law.  Quod  vis 
Jliiminis  de  t}io 2^Twdio  detraxerit,  and  vicino2yrciidio  attulerit,  judcmi 
tuum  remanet,  even  if  it  had  been  carried  over  to  an  adjoining  terri- 
tory. Consider  what  the  consequence  would  be  if  lands  of  this 
description  were  not  considered  as  appendant  to  the  main-land,  and 
as  comprised  ^^•ithin  the  bounds  of  territor5^ 

"  If  they  do  not  belong  to  the  United  States  of  America,  any  other 
power  might  occupy  them  ;  they  might  be  embanked  and  fortified. 
What  a  thorn  would  this  be  in  the  side  of  America !  It  is  physi- 
cally possible  at  least  that  they  might  be  so  occupied  by  European 
nations,  and  then  the  command  of  the  river  M'ould  be  no  longer  in 
America,  but  in  such  settlements.  The  possibility  of  such  a  conse- 
quence is  enough  to  expose  the  fallacy  of  any  arguments  that  are 
addressed  to  show  that  these  islands  are  not  to  be  considered  as  part 
of  the  territory  of  America.  Whether  they  are  composed  of  earth 
or  solid  rock,  will  not  vary  the  right  of  dominion,  for  the  right  of 
dominion  does  not  depend  upon  the  texture  of  the  soil. 

"  I  am  of  opinion  that  the  right  of  territory  is  to  be  reckoned  from 
those  islands.  That  being  established,  it  is  not  denied  that  the 
actual  capture  took  place  within  the  distance  of  three  miles  from 
the  islands,  and  at  the  very  threshold  of  the  river.  But  it  is  said 
that  the  act  of  capture  is  to  be  carried  back  to  the  commencement 
of  the  pursuit,  and  that  if  a  contest  begins  before,  it  is  lawful  for  a 
belligerent  cruiser  to  follow,  and  to  seize  his  prize  within  the  terri- 
tory of  a  neutral  state.  And  the  authority  of  Bynkershoek  is  cited 
on  this  point.  True  it  is,  that  that  great  man  does  intimate  an  opin- 
ion of  his  own  to  that  effect ;  but  with  many  qualifications,  and 
as  an  opinion,  which  he  did  not  find  to  have  been  adopted  by 
any  other  writers.  I  confess  I  should  have  been  inclined  to  have 
gone  along  with  him,  to  this  extent,  that  if  a  cruiser,  which  had 
before  acted  in  a  manner  entirely  unexceptionable,  and  free  from 
all  violation  of  territory,  had  summoned  a  vessel  to  submit  to  exam- 
ination and  search,  and  that  vessel  had  fled  to  such  places  as  these, 
entirely  uninhabited,  and  the  cruiser  had  without  injui-y  or  annoy- 


686  BELLIGERENTS   AND   NEUTRALS.  [PART  II. 

ance  to  any  person  whatever,  quietly  taken  possession  of  his  prey, 
it  would  be  stretching  the  point  too  hardly  against  the  captor,  to 
say  that  on  this  account  only  it  should  be  held  an  illegal  capture. 
If  nothing  objectionable  had  appeared  in  the  conduct  of  the  captors 
before,  the  mere  following  to  such  a  place  as  this  is,  would,  I  think, 
not  invalidate  a  seizure  otherwise  just  and  lawful. 

"  But  that  brings  me  to  a  part  of  the  case,  on  which  I  am  of  opin- 
ion that  the  privateer  has  laid  herself  open  to  great  reprehension. 
Captors  must  understand  that  they  are  not  to  station  themselves  in 
the  mouth  of  a  neutral  river,  for  the  purpose  of  exercising  the  rights 
of  war  from  that  river,  much  less  in  the  river  itself.  It  appears 
from  the  privateer's  own  log-book  that  this  vessel  has  done  both ; 
and  as  to  any  attempt  to  shelter  this  conduct  under  the  example  of 
King's  ships,  which  I  do  not  believe,  and  which,  if  true,  would  be 
no  justification  to  others,  captors  must,  I  say,  be  admonished,  that 
the  practice  is  altogether  indefensible,  and  that  if  King's  ships 
should  be  guilty  of  such  misconduct,  they  would  be  as  much  sub- 
ject to  censure  as  other  cruisers. 

"  It  is  unnecessary  to  go  over  all  the  entries  in  the  log.  The  cap- 
tors appear  by  their  own  description  ^o  have  been  standing  off  and  on, 
obtaining  information  at  the  Balise,  overhauling  vessels  in  their 
course  down  the  river,  and  making  the  river  as  much  subservient  to 
the  purposes  of  war,  as  if  it  had  been  a  river  of  their  own  country. 
This  is  an  inconvenience  which  the  states  of  America  are  called  upon 
to  resist,  and  which  this  court  is  bound  on  every  principle  to  dis- 
courage and  correct. 

"With  respect  to  one  vessel,  it  appears  that  the  Bllhoa,  under 
Spanish  colors,  and  an  undoubted  Spanish  ship,  had  been  captured 
and  carried  into  the  river ;  and  it  was  stated  in  an  affidavit  which 
was  exhibited  to  account  for  the  absence  of  the  usual  witnesses  in 
that  case,  tJuit  the  prisoners  had  escaped.  The  cause  was  brought  on 
upon  the  evidence  of  the  releasing  witnesses  under  this  representa- 
tion. It  now  appears  by  an  entry  in  this  log,  '  tltat  the  ^^I'isoners 
were  set  on  shore ;''  an  act  highly  unjustifiable,  in  its  own  nature, 
independent  of  the  deception  with  which  it  has  been  accompanied. 
The  prisoners  are  the  King's  prisoners,  and  captors  are  particularly 
enjoined  by  the  instructions  not  to  release  any  prisoners  belonging 
to  the  ships  of  the  enemy,  and  they  violate  their  duty  whenever  they 
do.  AVhen  I  advert  to  the  imposition  that  has  been  put  uj^on  the 
court  in  that  transaction,  how  can  I  trust  myself  to  any  representa- 
tion coming  from  the  same  persons.  Indeed,  I  think,  I  can  perceive 
strong  traits  of  bad  faith  running  throughout  the  whole  conduct  of 
the  captors  in  the  present  case.    In  answer  to  the  complaint  that 


CHAP.   Ill]  THE   "ANNA."  G87 

has  been  made  against  the  captors  for  bringing  this  prize  to  Eng- 
land, it  was  said,  that  it  was  done  at  the  desire  of  the  master  of  tlie 
captured  vessel ;  though  in  the  affidavit  of  the  master,  whicli  is  not 
contradicted,  it  is  sworn,  '  that  the  captors  offered  to  set  him  on 
shore,  but  that  he  refused  to  be  separated  from  his  cargo.' 

"  The  conduct  of  the  captors  has  on  all  points  been  highly  repre- 
hensible. Looking  to  all  the  circumstances  of  previous  misconduct, 
I  feel  myself  bound  to  pronounce,  that  there  has  been  a  violation  of 
territory,  and  that  as  to  the  question  of  property,  there  was  not  suf- 
ficient ground  of  seizure ;  and  tliat  these  acts  of  misconduct  have 
been  further  aggravated,  by  bringing  the  vessel  to  England,  without 
any  necessity  that  can  justify  such  a  measure.  In  such  a  case  it 
would  be  falling  short  of  the  justice  due  to  the  violated  rights  of 
America,  and  to  the  individuals  who  have  sustained  injury  by  such 
misconduct,  if  I  did  not  follow  up  the  restitution  which  has  passed 
on  the  former  day,  with  a  decree  of  costs  and  damages,"  ^ 

1  In  The  Twee  Gebroeders,  1800,  3  C.  Rob.  162,  164,  the  same  great  judge  said:  "I 
am  of  opinion  that  no  use  of  a  neutral  territory  for  the  purposes  of  war  is  to  be  per- 
mitted. I  do  not  say  remote  uses,  such  as  procuring  provisions  and  refreshments,  and 
acts  of  tliat  nature,  which  the  law  of  nations  universally  tolerates;  but  that  no  proxi- 
mate acts  of  war  are  in  any  manner  to  be  allowed  to  originate  on  neutral  grounds ; 
and  I  cannot  but  think  that  such  an  act  as  this,  that  a  ship  should  station  herself  on 
neutral  territory,  and  send  out  lier  boats  (as  was  done  in  tiiis  case)  on  hostile  enter- 
prises, is  an  act  of  liostility  much  too  immediate  to  be  permitted.  For,  sup[)ose  that 
even  a  direct  hostile  use  should  be  required  to  bring  it  within  the  proiiihition  of  the 
law  of  nations,  nobody  will  say  that  the  very  act  of  sending  out  boats  to  etfect  a 
capture  is  not  itself  an  act  directly  hostile,  not  complete,  indeed,  but  inchoate,  and 
clotlied  with  all  the  characters  of  liostility.  If  this  could  be  defended,  it  might  as  well 
be  said  that  a  ship  lyitlg  in  a  neutral  station  might  fire  shot  on  a  vessel  lying  out  of 
tlie  neutral  territory ;  the  injury  in  that  case  would  not  be  consummated,  nor  received 
on  neutral  ground ;  but  no  one  would  say  that  such  an  act  woild  not  be  an  hostile  act, 
immediately  conmienced  within  the  neutral  territory.  And  what  does  it  signify  to 
the  nature  of  the  act,  considered  for  the  present  purpose,  wiietlier  I  send  out  a  cannon- 
shot  which  shall  compel  the  submission  of  a  vessel  lying  at  two  miles  distance,  or 
wh?ther  1  send  out  a  boat  armed  and  manned,  to  effect  the  very  same  thing  at  tlie 
same  distance  ^  It  is  in  both  cases  the  direct  act  of  the  vessel  lying  in  neutral  ground. 
Tiie  act  of  hostility  actually  begins,  in  the  latter  case,  witliin  the  launching  and 
manning  and  arming  the  boat  that  is  sent  out  on  such  an  errand  of  foi-ce."' 
See  also  an  early  American  case,  Soult  v.  L'Africaine,  1804,  Bee's  R.  204, 
"In  1811  an  American  privateer,  rhe  General  Armstrong,  was  fouml  at  anchor 
in  Fayal  harbor  by  an  English  squadron.  A  boat  detachment  from  the  latter  ap- 
jiroached  the  privateer  and  was  fired  upon.  The  next  day  one  of  the  vessels  of  the 
squadron  took  up  position  near  the  General  Armstronrj  to  attack  her.  The  crew, 
not  finding  themselves  able  to  resist,  abandoned  and  destroyed  her.  The  United 
States  alleged  that  the  Portuguese  governor  had  failed  in  his  dut\'  as  a  neutral,  and 
demanded  a  large  compensation  for  tlie  owners  of  the  privateer.  After  much  cor- 
respondence the  affair  was  submitted  in  1851  to  the  arbitration  of  the  President  of  the 
French  Republic,  who  held  that  as  Captain  Reid,  of  the  privateer,  'had  not  applied  at 


BELLIGERENTS    AND    NEUTRALS.  [PART   II. 

THE   "ANNE." 

Supreme  Court  of  the  United   States,    1818. 

(3    Whcaton,  43o.) 

This  Tvas  the  case  of  a  British  ship  captured  while  h'ing  at  anctior 
near  the  Spanisli  part  of  tlie  island  of  St.  Domingo,  by  the  American 
Drivateer  Ultor.  ^ 

Story,  J. : — ■ 

"  The  claim  of  the  Spanish  government  for  the  violation  of  its 
neutral  territory  being  thus  disposed  of,  it  is  next  to  be  considered 
whether  the  British  claimant  can  assert  any  title  founded  upon  that 
circumstance. 

"  By  the  return  of  peace,  the  claimant  became  rehabilitated  with 
the  capacity  to  sustain  a  suit  in  the  courts  of  this  country ;  and  the 
argument  is,  that  a  capture  made  in  a  neutral  territory  is  void ;  and, 
therefore,  the  title  by  capture  being  invalid,  the  Britisli  owner  has 
a  right  to  restitution.  The  difficulty  of  this  argument  rests  in  the 
incorrectness  of  the  premises.  A  capture  made  within  neutral  waters 
is,  as  between  enemies,  deemed,  to  all  intents  and  purposes,  rightful ; 
it  is  only  by  the  neutral  sovereign  that  its  legal  validity  can  be  called 
in  question ;  and  as  to  him  and  him  only,  is  it  to  be  considered  void. 
The  enemy  has  no  rights  whatsoever,  and  if  the  neutral  sovereign 
omits  or  declines  to  interpose  a  claim,  the  property  is  condemnable, 
jure  helU^  to  the  captors.  This  is  the  clear  result  of  the  authori- 
ties ;  and  the  doctrine  rests  on  well  established  principles  of  i^ublio 
law. 

"  There  is  one  other  point  in  the  case  which,  if  all  other  difficulties 

the  beginning  to  the  neutral,  but  had  used  force  to  repel  an  improper  aggression  of 
which  lie  stated  himself  to  be  the  object,  he  had  himself  disregarded  tlie  neutrality 
of  the  territory  in  which  he  was,  and  had  consequently  released  its  sovereign  from  all 
obligations  to  protect  him  otherwise  tiian  by  his  good  offices;  that  from  that  moment 
tlie  Portuguese  Government  could  not  be  responsible  for  the  results  of  a  collision  whicli 
had  taken  place  in  contempt  of  its  sovereign  rights.'"  Hall's  Int.  Law,  648-G-19. 
See  criticism  of  the  award  in  Dana's  Wheaton,  note  208,  p.  620,  and  for  an  elaborate 
account  of  the  origin,  history  and  final  settlement  of  this  interesting  episode,  see  2 
Moore's  Int.  Arb.  1071-1132. 

In  an  early  French  case,  Tlie  Perle  (Conseil  des  Prises,  "An  VIII,"  1  Pistoye 
et  Duverdy,  100),  it  was  decided  that  a  belligerent  capture  in  neutral  waters  is  illegal 
wiietlier  under  the  guns  of  a  fort,  or  on  the  undefended  coast ;  and  the  ciptured  ship 
will  be  restored  by  tlie  courts  (French)  of  the  captor's  country.  —  Kd. 

^  Statement  of  the  case  is  much  abbreviated  and  only  a  part  of  the  opinion  is 
given.  —  Ed. 


CHAP.  III.]  THE   "  ANNE."  689 

were  removed,  would  be  decisive  against  the  claimant.  It  is  a  fact, 
that  the  captured  ship  first  commenced  hostilities  against  tlie  "priva- 
teer. This  is  admitted  on  all  sides ;  and  it  is  no  excuse  to  assert 
that  it  was  done  under  a  mistake  of  the  national  character  of  the 
privateer,  even  if  this  were  entirely  made  out  in  tlie  evidence.  While  i 
the  ship  was  lying  in  neutral  waters,  she  was  bound  to  abstain  from  ' 
all  hostilities,  except  in  self-defence.  The  privateer  had  an  equal 
title  with  herself  to  the  neutral  protection,  and  was  in  no  default  in 
approaching  the  coast  without  showing  her  national  character.  It 
was  a  violation  of  that  neutrality  which  the  captured  ship  was  bound 
to  observe,  to  commence  hostilities  for  any  purpose  in  these  waters ; 
for  no  vessel  coming  thither  was  bound  to  submit  to  search,  or  to 
account  to  her  for  her  conduct  or  character.  When,  therefore,  she 
commenced  hostilities,  she  forfeited  the  neutral  protection,  and  the 
capture  was  no  injury  for  which  any  redress  could  be  rightfully 
sought  from  the  neutral  sovereign. 

"  The  conclusion  from  all  these  views  of  the  case  is,  that  the  ship 
and  cargo  ought  to  be  condemned  as  good  prize  of  war."  ^ 

1  III  The  Eliza  Ann,  1813,  1  Dod.  244,  three  American  sliips  were  seized  in  Hanoe 
Buy,  by  the  British  sliip  Vigo.  A  claim  was  given,  under  tlie  direction  of  tlie 
Swedish  minister,  for  the  ships  and  cargoes  "as  taken  witliin  one  mile  of  tiie  mainland 
of  Sweden  *  *  *  contrary  to  and  in  violation  of  the  law  of  nations,  and  the  territory 
and  jurisdiction  of  his  said  [Swedish]  Majesty."  On  these  facts.  Sir  Wm.  Scott  said: 
"A  claim  has  been  given  by  the  Swedish  Consul,  for  these  ships  and  cargoes,  as 
having  been  taken  within  the  territories  of  the  King  of  Sweden,  and  in  violation  of  his 
territorial  riglits.  Tiiis  claim  could  not  have  been  given  by  the  Americans  themselves ; 
for  it  is  the  privilege,  not  of  the  enemy,  but  of  the  neutral  country,  wiiich  has  a  right 
to  see  that  no  act  of  violence  is  committed  within  its  jurisdiction.  When  a  violation 
of  neutral  territory  takes  place,  that  country  alone,  whose  tranquillity  has  been  dis- 
turbed, possesses  the  right  of  demanding  reparation  for  the  injury  which  she  has 
sustained  \_The  Purissima  Conception,  1805,  6  C.  Rob.  45;  The  Diiigentia,  1814,  1  Dod. 
404,  412].  It  is  a  principle  that  has  been  established  by  a  variety  of  decisions,  both  in 
this  and  in  the  Superior  Court  (The  Etrusco,  Lords,  1795),  tliat  tlie  enemy,  whose  pro- 
perty has  been  captured,  cannot  himself  give  the  claim,  but  must  resort  to  the  neutral 
for  his  remedy.  Acts  of  violence  by  one  enemy  against  another  are  forbidden  within 
the  limits  of  a  neutral  territory,  unless  they  are  sanctioned  by  tlie  authority  of  the 
neutral  state,  wiiich  it  has  tlie  power  of  granting  to  either  of  the  belligerents,  subject, 
of  course,  to  a  responsibility  to  the  other.  A  neutral  state  may  grant  permission  for 
such  acts  beforehand,  or  acquiesce  in  them  after  they  shall  have  taken  place,  or  it 
may,  as  has  been  done  in  the  present  instance,  step  forward  and  claim  the  jjroperty." 

In  the  case  of  The  Lilla,  2  Sprague,  1862,  177,  it  is  said  that,  •'  it  is  undoubtedly 
true  that  no  private  person  can  rest  a  claim  for  the  restoration  of  prize  in  the  courts 
of  the  captor  on  the  ground  that  the  capture  was  made  in  neutral  waters,  and  that  the 
neutral  nation  whose  rights  have  been  infringed  alone  can  interpose." 

In  tlie  case  of  The  Adela,  18G7,  6  Wall.  266,  Chief  Justice  Chase,  in  delivering  the 
judgment  of  the  court,  said:  "It  is  claimed  that  the  capture  took  place  in  British 
waters.     It  was  made,  in  fact,  near  Great  Abaco  Island,   which   belongs   to  Great 

44 


690  BELLIGERENTS   AND   NEUTRALS.  [PART  II. 

THE   "FLOEIDA." 
Supreme  Court  of  the  United  States,   1879. 

(101   United  States,  37.) 

Mr.  Justice  Swatxe,  after  stating  the  facts,  delivered  the  opinion 
of  the  court. 

The  legal  principles  applicable  to  the  facts  disclosed  in  the  record 
are  well  settled  in  the  law  of  nations,  and  in  English  and  American 
jurisprudence.  Extended  remarks  upon  the  subject  are,  therefore, 
unnecessary.  See  Grotius,  De  Jure  Belli,  b.  3,  c.  4,  sect.  8 ;  Bynker- 
shoek,  61,  c.  8;  Burlamaqui,  vol.  ii.  pt.  4,  c.  o,  sect.  19;  Vattel,  b.  3, 
c.  7,  sect.  132;  Dana's  Wheaton,  sect.  429  and  note  208;  3  Eob.  Ad. 
Rep.  373;  5  id.  21;  The  Anne,  3  Wheat.  435;  La  Amistad  de  Rues,  5 
id.  385;  The  Santissima  Trinidad,!  id.  283,  496;  The  Sir  William 
Peel,  5  Wall.  517;  The  Adela,  6  id.  266;  1  Kent,  Com.  (last  ed.),  pp. 
112,  117,  121. 

Grotius,  speaking  of  enemies  in  war,  says :  "  But  that  we  may  not 
kill  or  hurt  them  in  a  neutral  country,  proceeds  not  from  any  privi- 
leges attached  to  their  persons,  but  from  the  right  of  the  prince  in 
whose  dominions  they  are." 

A  capture  in  neutral  waters  is  valid  as  between  belligerents. 
Neither  a  belligerent  owner  nor  an  individual  enemy  owner  can  be 

Britain  ;  but  the  evidence  is  by  no  means  convincing  tliat  it  was  made  within  three 
miles  from  the  land.  On  the  contrary,  while  it  is  not,  perliaps,  certain  that  The 
AfUlii  was  without  the  line  of  neutral  jurisdiction  when  first  required  to  lay  to  by 
the  Quaker  City,  it  cannot  be  doubted  that  she  had  passed  beyond  it  when  siie  was 
actually  captured.  If,  however,  the  capture  had  been  actually  made  in  neutral  waters, 
that  circumstance  would  not,  of  itself,  prevent  condemnation,  especially  in  a  case  of 
capture  made  in  good  faith,  without  intent  to  violate  neutral  jurisdiction,  or  knowledge 
that  any  neutral  jurisdiction  was  in  fact  infringed,  and  in  the  absence  of  all  interven- 
tion or  claim  on  the  part  of  the  neutral  government  (The  Etntsco,  3  Robinson,  31; 
Vronw  Anna  Catharina,  5  id.  144).  '  It  might,'  as  was  observed  in  the  case  of  The  Sir 
William  Peel  {b  Wallace,  535),  'constitute  a  ground  of  claim  by  the  neutral  power 
whose  territory  had  suffered  trespass,  for  apology  or  indemnity.  But  neither  an 
enemy,  nor  a  neutral  acting  the  part  of  a  enemy,  can  demand  restitution  on  the  sole 
ground  of  capture  in  neutral  waters.'  " 

In  the  case  of  the  Britisli  siiip  Granrje,  captured  in  Delaware  Bay  by  a  French  pri- 
vateer (1793),  it  was  held  by  Attorney-General  Randolph  (1  Op.  Att.-Gen.  15),  that  if 
the  captured  ship  was  brought  within  the  jurisdiction  of  the  United  States,  it  was  their 
r  duty  as  neutrals  to  restore  her  to  the  owners.     To  the  same  effect,  see  La  Estrella, 
1«19.  4  Wheaton,  298.  — Ed. 


CHAP.  III.]  THE    "FLORIDA.'*  691 

heard  to  complain.  But  the  neutral  sovereign  whose  territory  has 
been  violated  may  interpose  and  demand  reparation,  and  is  entitled 
to  have  the  captured  property  restored. 

The  latter  was  not  done  in  this  case  because  the  captured  vessel  had 
been  sunk  and  lost.     It  was,  therefore,  impossible. 

The  libellaut  was  not  entitled  to  a  decree  in  his  favor,  for  several 
reasons. 

The  title  to  captured  property  always  vests  primarily  in  the  govern- 
ment  of   the  captors.     The  rights  of  individuals,  where  such  rights  ' 
exist,  are  the  results  of  local  law  or  regulations.     Here,  the  capture 
was  promptly  disavowed  by  the  United  States.     They,  therefore,  never 
had  any  title. 

The  case  is  one  in  which  the  judicial  is  bound  to  follow  the  action  of  I 
the  political  department  of  the  government,  and  is  concluded  by  it. ' 
Phill'qjs  V.  Payne,  92  U.  S.  130. 

These  things  must  necessarily  be  so,  otherwise  the  anomaly  would 
be  possible,  that,  while  the  government  was  apologizing  and  making 
reparation  to  avoid  a  foreign  war,  the  offending  officer  might,  through 
the  action  of  its  courts,  fill  his  pockets  with  the  fruits  of  the  offence 
out  of  which  the  controversy  arose.  When  the  capture  was  disavowed 
by  our  government,  it  became  for  all  the  purposes  of  this  case  as  if  it 
had  not  occurred. 

Lastly,  the  maxim,  "  ex  turpi  causa  non  oritur  actio,''  applies  with  full 
force.  No  court  will  lend  its  aid  to  a  party  who  founds  his  claim  for 
redress  upon  an  illegal  act. 

The  Brazilian  Government  was  justified  by  the  law  of  nations  in  i 
demanding  the  return  of  the  captured  vessel  and  proper  redress  other- 1 
wise.  It  was  due  to  its  own  character,  and  to  the  neutral  position  it 
had  assumed  between  the  belligerents  in  the  war  then  in  progress,  to 
take  prompt  and  vigorous  measures  in  the  case,  as  was  done.  The 
commander  was  condemned  by  the  law  of  nations,  public  policy,  and 
the  ethics  involved  in  his  conduct. 

Decree  affirmed.^ 

1  See  Hall,  Int.  Law,  644-645,  for  subsequent  action  of  United  States;  Dana's 
Wheaton,  notes  208,  209,  pp.  524-528. 

On  tliis  whole  subject,  see  note  to  The  Twee  Gebroeders  in  Tudor,  Mercantile  Cases, 
oded.  879-883.  — Ed. 


692  BELLIGERENTS   AND   NEUTRALS.  [PART  IL 


Section  40.  —  Equipment  of  Vessels  of  War  in  Neutral 

Territory. 


UNITED   STATES   NEUTRALITY   ACTS   OF    1794    AND   1818. 

(U.  S.  Statutes  at  Large,  1.,  381,  and  Revised  Stat.,  §  5289.) 

Act  of  June  5,  1794 : 

Section  3. — "  If  any  person  shall  within  any  of  the  ports,  harbors, 
bays,  rivers,  or  other  waters  of  the  United  States,  fit  out  and  arm,  or 
attempt  to  fit  out  and  arm,  or  procure  to  be  fitted  out  and  armed,  or 
shall  knowingly  be  concerned  in  the  furnishing,  fitting  out  or  arm- 
ing of  any  ship  or  vessel  with  intent  that  such  ship  or  vessel  shall 
be  employed  in  the  service  of  any  foreign  prince  or  state  [or  of  any 
colony,  district  or  people],  to  cruise  or  commit  hostilities  upon  the 
subjects,  citizens  or  property  of  another  foreign  prince  or  state  [or 
of  any  colony,  district  or  people],  with  whom  the  United  States  are 
at  peace,  or  shall  issue  or  deliver  a  commission  within  the  territory 
or  jurisdiction  of  the  United  States  for  any  ship  or  vessel  to  the  in- 
tent that  she  may  be  employed  as  aforesaid,  every  such  person  so 
oftending  shall,  upon  conviction,  be  adjudged  guilty  of  a  high  mis- 
demeanor, and  shall  be  fined  and  imprisoned  at  the  discretion  of  the 
court  in  which  the  conviction  shall  be  had,  so  as  the  fine  to  be  im- 
posed shall  in  no  case  be  more  than  five  thousand  [ten  thousand  by 
the  act  of  1818]  dollars,  and  the  term  of  imprisonment  shall  not 
exceed  three  years,  and  every  such  ship  or  vessel  with  her  tackle,  ap- 
parel and  furniture  together  with  all  materials,  arms,  ammunition 
and  stores  which  may  have  been  procured  for  the  building  and  equip- 
ment thereof  shall  be  forfeited,  one-half  to  the  use  of  any  person  who 
shall  give  information  of  the  offence,  and  the  other  half  to  the  use 
of  the  United  States. 

Section  7. — By  this  section  the  President  is  authorized  to  employ 
the  land  and  naval  forces  or  militia  to  execute  the  law. 

On  account  of  the  complaints  of  Spain  and  Portugal  (1815-17),  of 
infractions  of  neutrality  on  the  part  of  citizens  of  the  United  States 
in  the  war  which  those  states  were  then  waging  with  their  revolted 
South  American  colonies.  President  Madison  sent  a  special  message 
on  the  subject  to  Congress,  and  the  result  was  the  more  stringent 
act  of  April  20,  1818.     P'rom  a  suggestion  of  the  Spanish  Minister, 


CHAP.  III.]         BRITISH    FOREIGN    ENLISTMENT   ACTS.  693 

that  the  South  American  provmces  in  revolt,  and  not  recognized  as 
independent,  might  not  be  included  in  the  word  "  State,"  the  words 
"colony,  district,  or  people,"  were  added,  as  given  in  brackets  above. 
The  new  clauses  of  the  act  of  1818  of  chief  importance  are  those 
authorizing  the  detention  of  vessels  on  suspicion,  and  requiring  the 
owners  to  give  bonds  on  clearance. 

Act  of  1818  (Revised  Statutes,  §  5289) : 

Section  10. — "  The  owners  or  consignees  of  every  armed  vessel 
sailing  out  of  the  ports  of  the  United  States,  belonging  wholly  or  in 
■part  to  citizens  thereof,  shall,  before  clearing  out  the  same,  give  bond 
to  the  United  States,  with  sufficient  sureties,  in  double  the  amount 
of  the  value  of  vessel  and  cargo  on  board,  including  armament,  con- 
ditioned that  the  vessel  shall  not  be  employed  by  such  owners  to 
cruise  or  commit  hostilities  against  the  subjects,  citizens,  or  property 
of  any  foreign  prince  or  state,  or  of  any  colony,  district,  or  people, 
with  whom  the  United  States  are  at  peace." 

Section-  11. — "The  several  collectors  of  customs  shall  detain  any 
vessel  manifestly  built  for  warlike  purposes,  and  about  to  depart  the 
United  States,  the  cargo  of  which  principally  consists  of  arms  and 
munitions  of  war,  when  the  number  of  men  shipped  on  board,  or 
other  circumstances,  render  it  probable  that  such  vessel  is  intended 
to  be  employed  by  the  owners  to  cruise  or  commit  hostilities  upon 
the  subjects,  citizens,  or  property  of  any  foreign  prince,  etc.,  with 
whom  the  United  States  are  at  peace,  until  the  decision  of  the  Presi- 
dent is  had  thereon,  or  until  the  owner  gives  such  bond  and  security 
as  is  required  of  the  owners  of  armed  vessels  by  the  preceding 
section." 


BRITISH  FOREIGN  ENLISTMENT  ACTS,  OF  1819  AND  1870. 
(59  Geo.  III.,  c.  69,  and  33  and  34  Vict,  90.) 

Act  of  Jul)/  3,  1819. — Section  7. 

"  If  any  person,  within  any  part  of  the  United  Kingdom,  or  in  any 
part  of  His  Majesty's  dominions  beyond  the  seas,  shall,  without  the 
leave  and  license  of  His  Majesty  for  that  purpose  first  had  and  ob- 
tained as  aforesaid,  equip,  furnish,  fit  out,  or  arm,  or  attempt  or  en- 
deavor to  equip,  furnish,  fit  out,  or  arm,  or  procure  to  be  equipped, 
furnished,  fitted  out,  or  armed,  or  shall  knowingly  aid,  assist,  or  be 
concerned  in  the  equipping,  furnishing,  fitting  out,  or  arming  of  any 
ship  or  vessel,  w'\th  incent,  or  in  order  that  such  ship  or  vessel  shall 
be  employed  in  the  service  of  any  foreign  prince,  state,  or  potentate, 


694  BELLIGERENTS    AND    NEUTEALS.  [PART    II. 

or  of  any  foreign  colony,  province, or  part  of  any  province,  or  people; 
or  if  any  person  or  persons  exercising  or  assuming  to  exercise  any 
powers  of  government  in  or  over  any  foreign  state,  colony,  province, 
or  part  of  any  province  or  people,  as  a  transport  or  store-ship,  or 
with  intent  to  cruise  or  commit  hostilities  against  any  j)rince,  state, 
or  potentate,  or  against  the  persons  exercising  or  assuming  to  exer- 
cise the  powers  of  government  in  any  colony,  province,  or  part  of 
any  province  or  country,  or  against  the  inhabitants  of  any  foreign 
colony,  province,  or  part  of  any  province  or  country,  with  whom 
His  Majesty  shall  not  then  be  at  war ;  or  shall,  within  the  United 
Kingdom,  or  any  of  His  ^lajesty's  dominions,  or  in  any  settlement, 
colony,  ■'  territory,  island,  or  place  belonging  or  subject  to  His 
Majesty,  issue  or  deliver  any  commission  for  a  ship  or  vessel,  to  the 
intent  that  such  ship  or  vessel  shall  be  employed  as  aforesaid,  every 
such  person  so  offending  shall  be  deemed  guilty  of  a  misdemeanor, 
and  shall,  upon  conviction  thereof,  upon  any  information  or  indict- 
ment, be  punished  by  fine  and  imprisonment,  or  either  of  them,  at 
the  discretion  of  the  court  in  which  such  offender  shall  be  convicted; 
and  every  such  ship  or  vessel,  with  the  tackle,  apparel,  and  furni- 
ture, together  with  all  the  materials,  arms,  ammunition,  and  stores, 
which  may  belong  to  or  be  on  board  of  any  such  ship  or  vessel, 
shall  be  forfeited,  and  it  shall  be  lawful  for  any  officer  of  His 
Majesty's  customs  or  excise,  or  any  officer  of  His  Majesty's  navy, 
who  is  by  law  empowered  to  make  seizures,  for  any  forfeiture  in- 
curred under  any  of  the  laws  of  customs,  or  excise,  or  the  laws  of 
trade  and  navigation,  to  seize  such  ships  and  vessels  aforesaid,  and 
in  such  places  and  in  such  manner  in  which  the  officers  of  His 
Majesty's  customs  or  excise,  and  the  officers  of  His  ^lajesty's  navy 
are  empowered  respectively  to  make  seizures  under  the  laws  of  cus- 
toms and  excise,  or  under  the  laws  of  trade  and  navigation ;  and 
that  every  such  ship  and  vessel,  with  the  tackle,  apparel,  and  furni- 
ture, together  with  all  the  materials,  arms,  ammunition,  and  stores 
which  may  belong  to  or  be  on  board  of  such  ship,  or  vessel,  may  be 
prosecuted  and  condemned  in  the  like  manner,  and  in  such  courts  as 
ships  or  vessels  may  be  prosecuted  and  condemned  for  any  breach 
of  the  laws  made  for  the  protection  of  the  revenues  of  customs  and 
excise,  or  of  the  laws  of  trade  and  navigation. 

Section  8  imposes  penalties  for  the  augmentation  of  force  in  British 
ports. 

The  defect  in  this  act  was  in  the  procedure  under  it  rather  than 
in  the  intention  of  the  act  itself.  The  evidence  required  in  order  to 
arrest  or  detain  a  vessel  must  be  sufficient  to  satisfy  a  jury  of 
the  probable  breach  of  the  provisions  of  the  act ;  and  such  evidence 


CHAP.  III.]  UNITED    STATES    V.    GUINET.  695 

may  be  difficult  to  obtain.  Tlie  local  officers  were  wary  of  taking 
action  for  which  they  might  be  held  liable  in  damages.  The  act  of 
1870  removed  tliis  defect  of  procedure,  as  well  as  any  ambiguity 
there  might  be  in  the  act  itself.  The  question  of  the  breach  of  the 
act  is  not  to  be  determined  by  the  mere  "  intent  "  of  the  builder. 

Act  of  l^'iO: 

Section  8. — "  If  any  i3erson  within  Her  Majesty's  dominions,  etc., 
(1)  Builds  or  agrees  to  build,  or  causes  to  be  built,  any  ship  with 
intent  or  knowledge  or  having  reasonable  cause  to  believe  that  the 
same  shall  or  will  be  employed  in  the  military  or  naval  service  of 
any  foreign  State  at  war  with  any  friendly  State ;  or 

"  (2)  Issues  or  delivers  any  commission  for  any  ship  with  intent 
or  knowledge,  etc. ;  or 

"  (3)  Equips  any  ships  with  intent  or  knowledge,  etc. ;  or 

"  (4)  Despatches,  or  causes  or  allows  to  be  despatched,  any  ship 
with  intent  or  knowledge,  etc. 

"Such  persons  shall  be  deemed  to  have  committed  an  offence 
against  this  Act,  etc." 

Section  23  empowers  the  Secretary  of  State  on  "  reasonable  and 
probable  cause  for  believing"  that  a  ship  is  being  built  contrary-  tc 
this  Act,  to  issue  a  warrant  to  seize  and  search  such  ship  and  to  de- 
tain the  same  until  it  has  been  either  condemned  or  released  by 
process  of  law,  or  in  manner  hereinafter  mentioned. 

Section  24  provides  that  "  where  it  is  represented  to  any  local 
authority  "  that  there  is  reasonable  and  probable  cause  for  believing 
that  a  ship  has  been  or  is  being  built,  commissioned  or  equipped 
contrary  to  this  Act,  it  shall  be  the  duty  of  such  local  authority  to 
detain  such  ship,  and  forthwith  to  communicate  the  fact  of  such 
detention  to  the  Secretary  of  State  or  chief  executive  authority,  who 
may  then  issue  a  warrant  for  detention,  or  release  the  vessel. 


UNITED   STATES   v.    GUINET. 
United   States  Circuit  Court.  Penxsvlvaxia  District,  1795. 

(2  Dallas,  S21  ) 

Patterson,  Justice:  —  This  is  an  indictment  against  John  Etienue 
Guinet,  for  being,  knowingly,  concerned  in  furnishmg,  fitting  out,  and 
arming  Les  Jumeaux,  in  the  port  and  river  Delaware,  with  intent  that 
she  should  be  employed  in  the  service  of  the  French  Republic,  to 
cruise,  or  commit  hostilities,  upon  the  subjects  of  Great  Britain,  Avith 
whom  the  United  States  are  at  peace  :  And  it  is  the  province  of  the 


GOQ  BELLIGERENTS   AND   NEUTRALS.  [PART   IL 

jury  to  inquire,  whether  the  proof   exhibited  on  the  trial,  has  fully 
maintained  the  charge  contained  in  the  indictment. 

iSIuch  has  been  said  upon  the  construction  of  the  3d  and  4th  sections 
of  the  act  of  Congress;  but  the  court  is  clearly  of  opinion,  that  the 
3d  section  was  meant  to  include  all  cases  of  vessels,  armed  within  our 
ports  by  one  of  the  belligerent  powers,  to  act  as  cruisers  against 
another  belligerent  power  in  peace  with  the  United  States.  Convert- 
ing a  ship  from  her  original  destination,  with  intent  to  commit  hostili- 
ties ;  or  in  other  words,  converting  a  merchant  ship  into  a  vessel  of 
war,  must  be  deemed  an  original  outfit;  for  the  act  would,  otherwise, 
become  nugatory  and  inoperative.  It  is  the  conversion  from  the  peace- 
able use,  to  the  warlike  purpose,  that  constitutes  tlie  offence. 

The  vessel  in  question  arrived  in  this  port,  with  a  cargo  of  coffee 
and  sugar,  from  the  West  Indies;  and  so  appears  to  have  been  em- 
ployed by  her  owner  with  a  view  to  merchandise,  and  not  with  a  view 
to  war.  The  inquiry,  therefore,  is  limited  to  this  consideration, 
whether,  after  her  arrival,  she  was  fitted  out,  in  order  to  cruise 
against  any  foreign  nation,  being  at  peace  with  the  United  States.  It 
is  true,  she^left  the  wharf  with  only  four  guns,  the  number  that  she 
had  brought  into  the  port ;  but  it  is  equally  true,  that  when  she  had 
dropped  to  some  distance  below,  she  took  on  board  three  or  four  guns 
more,  a  number  of  muskets,  water-casks,  &c. ;  and,  it  is  manifest,  that 
other  guns  were  ready  to  be  sent  to  her  by  the  pilot  boat.  These  circum- 
stances clearly  prove  a  conversion  from  the  original  commercial  design  of 
the  vessel,  to  a  design  of  cruising  against  the  enemies  of  France  ;  and, 
of  course,  against  a  nation  at  peace  with  the  United  States,  since  the 
United  States  are  at  peace  with  all  the  world.  Xor  can  it  be  reason- 
ably contended,  that  the  articles  thus  put  on  board  the  vessel  were 
articles  of  merchandise  ;  for,  if  that  had  been  the  case,  they  would 
have  been  mentioned  in  her  manifest,  on  clearing  out  of  the  port, 
whereas  it  is  expressly  stated,  that  she  failed  in  ballast.  If  they  were 
not  to  be  used  for  merchandise,  the  inference  is  inevitable,  that  they 
Avere  to  be  used  for  war.  No  man  would  proclaim  on  the  house-top, 
that  he  intended  to  fit  out  a  privateer :  the  intention  must  be  collected 
from  all  the  circumstances  of  the  transaction,  which  the  jury  will  in- 
vestigate, and  on  which  they  must  decide.  But  if  they  are  of  opinion, 
that  it  was  intended  to  convert  this  vessel  from  a  merchant  ship  into  a 
cruiser,  every  man  who  was  knowingly  concerned  in  doing  so,  is  guilty 
in  the  contemplation  of  the  law. 

It  will  only,  then,  ])e  necessary  to  ascertain,  how  far  the  defendant  was 
knowingly  concerned;  for,  though  he  were  concerned,  if  he  did  not  act 
with  a  knowledge  of  the  real  object,  he  would  be  innocent.  It  has  been 
alleged  in  his  defence  that  he  was  merely  an  interpreter;  and  if,  in  fact, 


CHAP.  HI.]  UXITED    STATES    V.    RICHARD    PETERS.  697 

he  had  appeared  in  that  character  alone,  we  should  not  have  thought  it 
a  sufficient  ground  for  conviction.  But  the  jury  will  collect  from  the 
other  parts  of  the  transaction,  whether  this  is  not  used  as  a  mask  to 
cover  his  efficient  agency  in  the  equipment  of  the  vessel.  He  carried 
orders  from  the  owner  to  the  ship  carpenter ;  he  told  the  pilot  boy  at 
what  time  the  guns  sliould  be  taken  on  board  his  boat,  to  be  carried  to 
the  ship  ;  tlie  account  found  in  his  possession  states  charges  for  supplies 
of  cannon,  ball,  muskets,  and  commissions  for  services;  and  the  whole  is 
conducted  in  a  secret  and  mysterious  manner,  under  the  shade  of  night. 
Would  he  have  acted  this  part  as  a  mere  interpreter?  If  it  had  been 
fair  mercantile  business,  involving  nothing  repugnant  to  our  laws, 
would  it  have  been  so  much  a  work  of  darkness  ?  This  alone  casts  a 
gloom  over  the  transaction,  that  will  impress  every  just  and  ingenuous 
mind  with  an  idea  of  fraud  and  delinquencj*. 

If  the  defendant  has  been  concerned  in  the  offence,  there  is  no  doubt 
that  it  is  effected  as  far  as  it  was  in  his  power  to  complete  it.  The 
illegal  outfit  of  the  vessel  was  accomplished;  and  that  an  additional 
number  of  cannon  was  not  sent  to  augment  her  force,  was  not  owing  to 
his  respect  to  the  laws,  but  to  the  vigilance  of  the  public  police. 

Upon  the  whole,  the  jury  will  consider  the  indictment;  and  give 
such  a  verdict  as  shall  comport  with  evidence  and  law. 

Verdict  —  Guilty. 


UNITED  STATES  v.  RICHAED  PETERS. 

Supreme  Court  of  the  United  States,  1795. 

(3  Dallas,  121.) 

RuTLEDGE,  Chief  Justice: — We  have  consulted  together  on  this 
motion  ;  and,  though  a  difference  of  sentiment  exists,  a  majority  of 
the  court  are  clearly  of  opinion,  that  the  motiou  ought  to  be  granted. 
Therefore, 

Let  a  prohibition  issue. 

The  prohibition  issued,  accordingly,  in  the  following  form  : 

"  United  States,  S.S.  : 

Tlie  President  of  the  United  States  to  the  honorable  Richard 
Peters,  Esquire,  Judge  of  the  District  Court  of  the  United  States, 
in  and  for  the  Pennsylvania  district:  It  is  shown  to  the  judges  of  the 
Supreme  Court  of  the  United  States,  by  Samuel  B.  Davis,  That 
whereas  by  the  laws  of  nations,  and  the  treaties  subsisting  between 
the    United   States   and   the    Republic  of  France,  the  trial  of  prizes 


698  BELLIGERENTS    AND   NEUTRALS.  [PART  IL 

taken  on  the  high  seas,  without  the  territorial  limits  and  jurisdiction 
of  the  United  States,  and  brought  within  the  dominions  and  jurisdic- 
tion of  the  said  republic,  for  legal  adjudication  by  vessels  of  war 
belonging  to  the  sovereignty  of  the  said  republic,  acting  under  the 
same,  and  of  all  questions  incidental  thereto,  does  of  right,  and 
exclusively,  belong  to  the  tribunals  and  judiciary  establishments  of 
the  said  republic,  and  to  no  other  tribunal,  or  tribunals,  court,  or 
courts,  whatsoever :  And  whereas  by  the  said  law  of  nations,  and 
treaties  aforesaid,  the  vessels  of  war  belonging  to  the  said  French 
Republic,  and  the  officers  commanding  the  same,  cannot,  and  ought 
not,  to  be  arrested,  seized,  attached,  or  detained,  in  the  ports  of  the 
United  States,  by  process  of  law,  at  the  suit  or  instance  of  individ- 
uals, to  answer  for  any  capture  or  captures,  seizure  or  seizures,  made 
on  the  high  seas,  and  brought  for  legal  adjudication  into  the  ports  of 
the  French  Republic,  by  the  said  vessels  of  war,  while  belonging  to, 
and  acting  under  the  authority  and  in  the  immediate  service  of  the 
said  republic :  And  whereas  by  the  laws  and  treaties  aforesaid,  the 
District  Courts  of  the  United  States  have  not,  and  ought  not,  to 
entertain  jurisdiction  or  hold  plea  of  such  captures,  made  as  aforesaid, 
under  the  above  circumstances :  And  whereas  by  the  laws  of  nations, 
the  vessels  of  war  of  belligerent  powers,  duly  by  them  authorized,  to 
cruise  against  their  enemies,  and  to  make  prize  of  their  ships  and 
goods,  may,  in  time  of  war,  arrest  and  seize  the  vessels  belonging  to 
the  subjects  or  citizens  of  neutral  nations,  and  bring  them  into  the 
ports  of  the  sovereign  under  whose  commission  and  authority  they 
act,  there  to  answer  for  any  breaches  of  the  laws  of  nations,  concerning 
the  navigation  of  neutral  ships,  in  time  of  war ;  and  the  said  vessels 
of  war,  their  commanders,  officers  and  crews,  are  not  amenable  before 
the  tribunals  of  neutral  powers  for  their  conduct  therein,  but  are  only 
answerable  to  the  sovereign  in  whose  immediate  service  they  were,  and 
from  whom  they  derived  their  authority:  And  whereas,  on  or  before 
the  twentieth  day  of  May,  now  last  past,  the  said  Samuel  B.  Davis, 
was,  and  now  is,  a  lieutenant  of  ships  in  the  navy  of  the  said  French 
Republic,  and  commander  of  a  corvette,  or  vessel  of  war,  called  the 
Cassias,  then,  and  now,  the  property  of  the  said  republic,  and  in  her 
immediate  service  ;  and  on  the  said  twentieth  day  of  May,  was  duly 
commissioned,  by  and  under  the  authority  of  the  said  republic,  to 
cruise  against  her  enemies,  and  make  prize  of  their  ships  (as  by  his 
commission  and  the  certificate  of  the  minister  plenipotentiary  of  the 
said  republic  to  the  United  States,  to  the  court  shown,  more  fully 
appears).  Nevertheless  a  certain  James  Yard,  of  the  city  of  Phila- 
delphia, merchant,  not  ignorant  of  the  premises,  but  contriving  and 
intending  to  disturb  the  peace  and  harmony  subsisting  between  the 


CHAP.  in.J  UNITED    STATES   V.   EICHAKD   PETERS.  G99 

United  States  and  the  French  Republic,  and  him.  the  said  Samuel  B. 
Davis,  -wrongfully  to  aggrieve  and  oppress,  and  draw  to  another  proof, 
liini,  the  said  Samuel  B.  Davis,  and  the  said  corvette,  or  vessel  of  war, 
of  the  French  Republic,  the  Casslus,  in  the  port  of  Philadelpliia, 
under  the  protection  of  the  laws  of  nations,  and  of  the  faith  of 
treaties,  has,  by  process  out  of  the  District  Court  of  the  United  States, 
in  and  for  the  district  of  Pennsylvania,  attached  and  arrested  him, 
the  said  Samuel  B.  Davis,  and  the  said  corvette,  or  vessel  of  war,  the 
Cassius,  before  the  judge  of  the  said  District  Court,  contrary  to  the  said 
law  of  nations,  and  treaties,  and  against  the  due  form  of  the  laws  of 
the  United  States,  hath  unjustly  drawn  in  plea,  to  answer  to  a  certain 
libel,  by  him,  the  said  James  Yard,  against  him,  the  said  Samuel  B. 
Davis,  and  against  the  said  corvette,  or  vessel  of  war,  the  Cassu/s,  her 
tackle,  apparel,  and  furniture,  exhibited  and  promoted,  craftily  and 
subtly  therein  alleging,  articulating,  and  objecting,  that  on  the 
said  twentieth  day  of  May,  now  last  past,  the  said  Samuel  B.  Davis, 
then  commander  of  the  said  corvette,  or  vessel,  the  Casslus,  did, 
forcibly,  violently,  and  tortiously,  take  on  the  high  seas,  a  certain 
schooner,  or  vessel,  belonging  to  the  said  James  Yard,  called  the 
William  Lindsey,  and  brought  her  into  Port  de  Paix  (in  the  dominion 
of  the  French  Republic),  where  she  still  remains ;  and  also  alleging 
and  articulating  that  the  said  corvette,  or  vessel  called  the  Cassius, 
was  originally  equipped  and  fitted  for  war,  in  the  port  of  Philadelphia, 
in  the  United  States,  and  that  the  said  Samuel  B.  Davis  was  at  the  time 
of  the  said  capture,  and  now  is,  a  citizen  of  the  United  States :  With- 
out this,  however,  and  the  said  James  Yard,  not  in  any  manner 
alleging,  or  articulating,  that  the  said  capture  was  made  within  the 
territory,  rivers,  or  bays,  of  the  United  States,  or  within  a  marine 
league  of  the  coast  thereof,  or  that  the  said  corvette  or  vessel,  the 
Cassius,  was  so  fitted  or  equipped  for  war  in  the  United  States  by  the 
said  French  Republic,  her  agent,  or  agents,  with  their  knowledge,  or 
by  the  means,  or  procurement,  or  by  the  said  Samuel  B.  Davis,  or 
that  at  the  time  of  her  being  so  equipped,  or  fitted  for  war,  in  the 
United  States  (if  ever  there  she  was  so  in  any  manner  fitted  or 
equipped),  she  was  the  property  of  the  said  French  Republic,  or  that 
the  said  Samuel  B.  Davis  was  in  any  manner  in  the  said  equipment, 
or  fitting  for  war,  concerned ;  and  without  this,  also,  and  the  said 
James  Yard,  not  in  any  manner  alleging  that  the  said  Samviel  B. 
Davis  was  retained,  or  engaged,  in  the  service  of  the  French  Republic, 
within  the  territory  or  jurisdiction  of  the  United  States  :  And  that 
the  said  James  Yard,  him,  the  said  Samuel  B.  Davis,  and  the  said 
corvette,  or  vessel  of  war,  called  the  Cassius,  by  force  of  the  process 
aforesaid,  out  of  the  said  District  Court,  had  and  obtained,  as  aforesaid, 


700  BELLIGERENTS    AND   NEUTRALS.  [PART  II. 

still  wrongfully  detains,  and  the  said  Samuel  B.  Davis,  and  the  French 
Republic,  owner  of  the  said  corvette,  or  vessel  of  war,  thereupon  in 
the  said  District  Court  to  answer,  and  in  the  premises,  cause  to  be 
condemned,  with  all  his  power,  endeavors,  and  daily  contrives,  iu 
contempt  of  the  government  of  the  United  States,  against  the  laws  of 
nations,  and  the  treaties  subsisting  between  the  United  States  and  the 
French  Republic,  aud  against  the  laws  and  customs  of  the  United 
States,  to  the  manifest  violation  of  the  law  of  nations  and  treaties, 
and  to  the  manifest  disturbance  of  the  peace  and  harmony  happily 
subsisting  between  the  United  States  and  the  French  Republic  : 
Wherefore  the  said  Samuel  B.  Davis,  the  aid  of  the  said  Supreme 
Court  most  respectfully  requesting,  has  prayed  remedy  by  a  wi-it  of 
prohibition,  to  be  issued  out  of  the  said  Supreme  Court,  to  you  to  be 
directed,  do  prohibit  you  from  holding  the  plea  aforesaid,  the  premises 
aforesaid  any  wise  concerning,  farther  before  you:  —  You,  therefore, 
are  hereby  prohibited,  that  you  no  further  hold  the  plea  aforesaid,  the 
premises  aforesaid  in  any  wise  touching,  before  you,  nor  anything  in 
the  said  District  Court  attempt,  nor  procure  to  be  done,  which  may  be 
in  any  wise  to  the  prejudice  of  the  said  Samuel  B.  Davis,  or  the  said 
corvette,  or  vessel  of  war,  called  the  Cassius;  or  in  contempt  of  the 
laws  of  the  United  States  :  And  also,  that  from  all  proceedings 
thereon  you  do,  without  delay,  release  the  said  Samuel  B.  Davis,  and 
the  said  corvette,  or  vessel  of  war,  called  the  Cassius,  at  your  peril. 

Witness,  the  honorable  John  Rutledge,  Esquire,  Chief  Justice  of 
the  said  Supreme  Court,  at  Philadelphia,  this  twenty-fourth  day  of 
August,  in  the  year  of  our  Lord  one  thousand  seven  hundred  and  ninety- 
five,  and  of  the  independence  of  the  United  States,  the  twentieth. 

I.  W^AGNER,  D.  C.  Sup.  Ct.,  U.  S.i 

^  On  release  of  tlie  vessel  pursuant  to  the  writ  of  proliibition,  a  new  libel  was  imme- 
diately filed  in  tlie  Circuit  Court  by  one  of  the  former  plaintiffs,  on  tlie  ground  of  illegal 
equipment  of  the  vessel  the  year  before.  —  Kelland  v.  The  Cassius,  2  Dall.  365. 

At  the  October  term,  1796,  the  question  arose,  whether  the  Circuit  Court  could  take 
original  cognizance  of  information  for  forfeiture  under  the  Act  of  1704;  and  the  court 
dismissed  tlie  proceedings,  on  the  ground  that  such  proceedings  must  be  instituted  in 
the  District  Court.  Ketland  v.  The  Cassius,  2  Dall.  365.  No  further  action  was  taken 
in  the  courts  ;  and  it  will  thus  be  seen  that  the  question  of  international  law  was  left 
undecided.  The  French  minister,  M.  Adet,  had  dismantled  the  ship  and  had  formally 
abandoned  her  to  the  government  of  the  United  States.  The  practical  result  was  that 
a  foreign  ship  of  war  was  libelled  and  detained  by  the  courts  of  the  United  States,  and 
the  Federal  Executive  seemed  unable  to  prevent  it. 

In  the  United  States  v.  Gitinet,  ante,  the  accused  was  tried  and  condemned  to  fine 
and  imprisonment  for  aiding  in  fitting  out  the  Cassius  in  contravention  of  the  Act  of 
1794.— Ed. 


CHAP.  III.]  THE    "SANTISSIMA    TRINIDAD."  701 

THE   "  SANTISSIMA   TRINIDAD." 
Supreme  Coukt  of  the  United  States,  1822. 

(7    Wheaton,  283.) 

This  was  a  libel  filed  by  the  consul  of  Spain,  in  the  district  court 
of  Virginia,  in  April,  1817,  against  eighty-nine  bales  of  cochineal, 
two  bales  of  jalap,  and  one  box  of  vanilla,  originally  constituting 
part  of  the  cargoes  of  the  Spanish  ships  Santissima  Trinidad  and 
St.  Ander,  and  alleged  to  be  unlawfully  and  piratically  taken  out  of 
those  vessels  on  the  high  seas  by  a  squadron  consisting  of  two  armed 
vessels  called  the  Independencia  del  iSud  and  the  Altravida,  and 
manned  and  commanded  by  persons  assuming  themselves  to  be 
citizens  of  the  ITnited  Provinces  of  the  Rio  de  la  Plata.  The  libel 
was  filed,  in  behalf  of  the  original  Spanish  owners,  by  Don  Pablo 
Chacon,  consul  of  his  Catholic  Majesty  for  the  port  of  Norfolk; 
and  as  amended,  it  insisted  upon  restitution,  principally  for  three 
reasons : 

(1)  That  the  commanders  of  the  capturing  vessels,  the  Indepen- 
dencia and  the  Alti-avida^  were  native  citizens  of  the  United  States, 
and  were  prohibited  by  our  treaty  with  Spain  of  1795,  from  taking 
commissions  to  cruise  against  that  power.  (2)  That  the  said  capt- 
uring vessels  were  owned  in  the  United  States,  and  were  originally 
equipped,  fitted  out,  armed  and  manned  in  the  United  States,  con- 
trary to  law.  (3)  That  their  force  and  armament  had  been  illegally 
augmented  within  the  United  States. 

The  district  court,  upon  the  hearing  of  the  cause,  decreed  restitu- 
tion to  the  original  Spanish  owners.  That  sentence  was  affirmed  in 
the  circuit  court,  and  from  the  decree  of  the  latter  the  cause  was 
brought  by  appeal  to  this  court.' 

Judgment, — Story,  J. : — 

"  Upon  the  argument  at  the  bar  several  questions  have  arisen, 
which  have  been  deliberately  considered  by  the  court ;  and  its  judg- 
ment will  now  be  pronounced.  The  first  in  the  order,  in  which  we 
think  it  most  convenient  to  consider  the  cause,  is,  whether  the  Indepen- 
dencia is  in  point  of  fact  a  public  ship,  belonging  to  the  government  of 
Buenos  Ayres.     The  history  of  this  vessel,  so  far  as  is  necessary  for 

1  This  statement  of  the  case  is  substituted  for  that  of  the  report  and  parts  of  the 
judgment  are  omitted.  —  Ed. 


702  BELLIGERENTS    AND    NEUTRALS.  [PART  U. 

the  disposal  of  this  point,  is  briefly  this :  She  was  originally  built 
and  equipped  at  Baltimore  as  a  privateer  during  the  late  war  with 
Great  Britain,  and  was  then  rigged  as  a  schooner,  and  called  the 
Mammoth.,  and  cruised  against  the  enemy.  After  the  peace  she  was 
rigged  as  a  brig,  and  sold  by  her  original  owners.  In  January,  1816, 
she  was  loaded  with  a  cai-go  of  munitions  of  war,  by  her  new  own- 
ers, who  are  inhabitants  of  Baltimore,  and  being  armed  with  twelve 
guns,  constituting  a  part  of  her  original  armament,  she  was  de- 
spatched from  that  port,  under  the  command  of  the  claimant,  on  a 
voyage,  ostensibly  to  the  Northwest  Coast,  but  in  reality  to  Buenos 
Ayres.  By  the  written  instructions  given  to  the  supercargo  on 
this  voyage,  he  was  authorized  to  sell  the  vessel  to  the  government 
of  Buenos  Ayres,  if  he  could  obtain  a  suitable  price.  She  duly 
arrived  at  Buenos  Ayres,  having  exercised  no  act  of  hostility,  but 
sailed  under  the  protection  of  the  American  flag,  during  the  voy- 
age. At  Buenos  Ayres  the  vessel  was  sold  to  Captain  Chaytor  and 
two  other  persons ;  and  soon  afterwards  she  assumed  the  flag  and 
character  of  a  public  ship,  and  was  understood  by  the  crew  to  have 
been  sold  to  the  government  of  Buenos  Ayres ;  and  Captain  Chay- 
tor made  known  these  facts  to  the  crew,  and  asserted  that  he  had 
become  a  citizen  of  Buenos  Ayres ;  and  had  received  a  commission 
to  command  the  vessel  as  a  national  ship ;  and  invited  the  crew  to 
enlist  in  the  service;  and  the  greater  part  of  them  accordingly 
enlisted.  From  this  period,  which  was  in  May,  1816,  the  public 
functionaries  of  our  own  and  other  foreign  governments  at  that  port, 
considered  the  vessel  as  a  public  ship  of  war,  and  such  was  her 
avowed  character  and  reputation.  No  bill  of  sale  of  the  vessel  to 
the  government  of  Buenos  Ayres  is  produced,  and  a  question  has 
been  made  principally  from  this  defect  in  the  evidence,  whether  her 
character  as  a  public  ship  is  established.  It  is  not  understood  that 
any  doubt  is  expi-essed  as  to  the  genuineness  of  Captam  Chaytor's 
commission,  nor  as  to  the  competency  of  the  other  proofs  in  the 
cause  introduced,  to  corroborate  it.  We  are  of  opinion  that  they  do. 
In  general  the  commission  of  a  public  ship,  signed  by  the  proper 
authorities  of  the  nation  to  which  she  belongs,  is  complete  proof  of 
her  national  character.  A  bill  of  sale  is  not  necessary  to  be  pro- 
duced. Nor  will  the  courts  of  a  foreign  country  inquire  into  the 
means  by  which  the  title  to  the  property  has  been  acquired.  It 
would  be  to  exert  the  right  of  examining  into  the  validity  of  the  acts 
of  the  foreign  sovereign,  and  to  sit  in  judgment  upon  them  in  cases 
where  he  has  not  conceded  the  jurisdiction,  and  where  it  would  be 
inconsistent  with  his  own  supremacy.  The  commission,  therefore, 
of  a  public  ship,  when  duly  authenticated,  so  far  at  least  as  foreign 


CHAP.  III.]  THE   "  SANTISSIMA   TllINIDAD."  703 

courts  are  concerned,  imports  absolute  verity,  and  the  title  is  not 
examinable.  The  property  must  be  taken  to  be  duly  acquired,  and 
cannot  be  controverted.  This  has  been  the  settled  practice  between 
nations  ;  and  it  is  a  rule  founded  in  public  convenience  and  policy, 
and  cannot  be  broken  in  upon,  without  endangering  the  peace  and 
repose,  as  well  of  neutral  as  of  belligerent  sovereigns.  The  com- 
mission in  the  present  case  is  not  expressed  in  the  most  unequivocal 
terras ;  but  its  fair  purport  and  interpretation  must  be  deemed  to 
apply  to  a  public  ship  of  the  government.  If  we  add  to  this  the 
corroborative  testimony  of  our  own  and  the  British  consul  at  Buenos 
Ayres,  as  well  as  that  of  private  citizens,  to  the  notoriety  of  her 
claim  of  a  public  character  ;  and  her  admission  into  our  own  ports 
as  a  public  ship,  with  the  immunities  and  privileges  belonging  to 
such  a  ship,  with  the  express  approbation  of  our  own  government, 
it  does  not  seem  too  much  to  assert,  whatever  may  be  the  private 
suspicion  of  a  lurking  American  interest,  that  she  must  be  judicially 
held  to  be  a  public  ship  of  the  country  whose  commission  she 
bears.    *    *    * 

"  The  next  question  growing  out  of  this  record,  is  whether  the 
property  in  controversy  was  captured  in  violation  of  our  neutrality, 
so  that  restitution  ought,  by  the  law  of  nations,  to  be  decreed  to  the 
libellants.  Two  grounds  are  relied  upon  to  justify  restitution : 
First,  that  the  Independencia  and  Altravida  were  originally  equipped, 
armed,  and  manned  as  vessels  of  war  in  our  ports.  Secondly,  that 
there  was  an  illegal  augmentation  of  the  force  of  the  Independencia 
within  our  ports.  Are  these  grounds,  or  either  of  them,  sustained 
by  the  evidence  ?    *    *    * 

"  The  question  as  to  the  original  illegal  armament  and  outfit  of 
the  Independencia  may  be  dismissed  in  a  few  words.  It  is  appar- 
ent, that  though  equipped  as  a  vessel  of  war,  she  was  sent  to  Buenos 
Ayres  on  a  commercial  adventure,  contraband,  indeed,  but  in  no  shape 
violating  our  laws  on  our  national  neutrality.  If  captured  by  a 
Spanish  ship  of  war  during  the  voyage  she  would  have  been  justly 
condemned  as  good  prize,  and  for  being  engaged  in  a  traffic  prohib- 
ited by  the  law  of  nations.  But  there  is  nothing  in  our  laws,  or  in 
the  law  of  nations,  that  forbids  our  citizens  from  sending  armed  ves- 
sels, as  well  as  munitions  of  Avar,  to  foreign  ports  for  sale.  It  is  a 
commercial  adventure  which  no  nation  is  bound  to  prohibit;  and 
which  only  exposes  the  persons  engaged  in  it  to  the  penalty  of  con- 
fiscation. Supposing,  therefore,  the  voyage  to  have  been  for  com- 
mercial purposes,  and  the  sale  at  Buenos  Ayres  to  have  been  a  bona 
fide  sale  (and  there  is  nothing  in  the  evidence  before  us  to  contradict 
it),  there  is  no  pretence  to  say,  that  the  original  outfit  on  the  voyage 


704  BELLIGERENTS    AND    NEUTRALS,  [PART  IL 

was  illegal,  or  that  a  capture  made  after  the  sale  was,  for  that 
cause  alone,  invalid, 

"  The  most  material  consideration  is  as  to  the  augmentation  of  her 
force  in  the  United  States,  at  a  subsequent  period,     *    *     * 

"  The  Court  is,  therefore,  driven  to  the  conclusion,  that  there  was 
an  illegal  augmentation  of  the  force  of  the  Indepoidencia  in  our 
ports  by  a  substantial  increase  of  her  crew ;  and  this  renders  it 
wholly  unnecessary  to  enter  into  an  investigation  of  the  question, 
whether  there  was  not  also  an  illegal  increase  of  her  armament. 
*  *  #  This  view  of  the  question  renders  it  unnecessary  to  con- 
sider another  which  has  been  discussed  at  the  bar  respecting  what 
is  denominated  the  right  of  expatriation,     *    *     * 

"  And  here  we  are  met  by  an  argument  on  behalf  of  the  claimant, 
that  the  augmentation  of  the  force  of  the  Independencia  within  our 
ports,  is  not  an  infraction  of  the  law  of  nations,  or  a  violation  of  our 
neutrality  ;  and  that  so  far  as  it  stands  prohibited  by  our  municipal 
laws  the  penalties  are  personal,  and  do  not  reach  the  case  of  restitu- 
tion of  captures  made  in  the  cruise,  during  which  such  augmenta- 
tion has  taken  place.  It  has  never  been  held  by  this  court  that  an 
augmentation  of  force  or  illegal  outfit  affected  any  captures  made 
after  the  original  cruise  was  terminated.  By  analogy  to  other  cases 
of  violations  of  public  law  the  offence  may  well  be  deemed  to  be  de- 
posited at  the  termination  of  the  voyage,  and  not  to  affect  future 
transactions.  But  as  to  captures  made  during  the  same  cruise,  the 
doctrine  of  this  court  has  long  established  that  such  illegal  augmen- 
tation is  a  violation  of  the  law  of  nations,  as  well  as  of  our  own 
municipal  laws,  and  as  a  violation  of  our  neutrality,  by  analogy  to 
other  cases,  it  infects  the  captures  subsequently  made  with  the  char- 
acter of  torts,  and  justifies  and  requires  a  restitution  to  the  parties 
who  have  been  injured  by  such  misconduct.  It  does  not  lie  in  the 
mouth  of  wrongdoers  to  set  up  a  title  derived  from  a  violation  of  our 
neutrality. 

"  The  cases  in  which  this  doctrine  has  been  recognized  and  applied, 
have  been  cited  at  the  bar,  and  are  so  numerous  and  so  uniform,  that 
it  would  be  a  waste  of  time  to  discuss  them,  or  to  examine  the  rea- 
soning by  which  they  are  supported.  More  especially  as  no  inclina- 
tion exists  on  the  part  of  the  court  to  question  the  soundness  of  these 
decisions.  If,  indeed,  the  question  were  entirely  new,  it  would  de- 
serve very  grave  consideration,  whether  a  claim  founded  on  a  viola- 
tion of  our  neutral  jurisdiction  could  be  asserted  by  private  persons, 
or  in  any  other  manner  than  a  direct  intervention  of  the  government 
itself.  In  the  case  of  a  capture  made  within  a  neutral  territorial 
jurisdiction,  it  is  well  settled,  that  as  between  the  captors  and  the 


CHAP,   in.]  THE    "SANTISSIMA    TRINIDAD,"  703 

captured,  the  question  can  never  be  litigated.     It  can  arise  only  upon  i 
a  claim  of  the  neutral  sovereign  asserted  in  his  own  courts  or  the  | 
courts  of  the  power  having  cognizance  of  the  capture  itself  for  the  ' 
purposes  of  prize.     And  by  analogy  to  this  course  of  proceeding,  the 
interposition  of  our  own  government  might  seem  fit  to  have  been  re- 
quired before  cognizance  of  the  wrong  could  be  taken  by  our  courts. 
But  the  practice  from  the  beginning  m  this  class  of  causes,  a  period  'I 
of  nearly  30  years,  has  been  uniformly  the  other  way ;  and  it  is  ^ 
now  too  late  to  disturb  it.     If  any  inconvenience  should  grow  out  of 
it,  from  reasons  of  state  policy  or  executive  discretion,  it  is  compe- 
tent for  Congress  to  apply  at  its  pleasure  the  proper  remedy.  *   *   * 
"  Upon  the  whole,  it  is  the  opinion  of  the  court  that  the  decree  of 
the  circuit  court  be  affirmed,  with  costs."  ^ 

1  In  tlie  case  of  La  Amistnd  de  Rues,  1820,  5  Wlieat.  385,  it  was  held  that  a  civil  court  j 
of  a  neutral  country  cannot  adjudicate  upon  the  validity  of  a  capture jwre  belli,  as 
between  tlie  captor  and  tlie  prize.     Its  only  function  is  to  vindicate  the  offended  s<ive-  : 
reignty  of  its  own  country,  vvlien  the  capture  was  made  in  violation  of  its  neutrality. 

In  the  case  of  r/iff  Nerei/da,  8  Wheaton,  108  (1823),  a  Spanish  ship  of  war  was 
captured  by  the  privateer  Irresistible,  which  was  fitted  out,  owned  ami  commanded  by 
American  citizens,  cruising  under  a  commission  from  Artigas,  as  chief  of  the  Oriental 
Kepublic  of  Rio  de  la  Plata.  The  prize  was  taken  to  ^Margarita,  an  island  of  Venezuela, 
and  there  condemned  as  prize,  A'enezuela  being  an  ally  of  the  Oriental  Kepublic.  She 
was  there  commissioned  as  a  Venezuelan  privf.teer,  and  came  to  Baltimore.  Here  she 
was  libelled  on  behalf  of  the  King  of  Spain  on  the  ground  that  the  Irresistible  had  been 
illegally  fitted  out  in  an  American  port.  A  claim  was  set  up  by  one  Francesche,  who 
alleged  that  he  had  bought  her  at  the  prize  sale.  The  Supreme  Court  (Story,  J., 
giving  the  opinion)  held  that  this  purchase  was  not  proved,  and  that  she  was  still  in 
the  hands  and  ownership  of  the  owners  of  the  Irresistible ;  that  their  title  was  not  im- 
proved by  the  condemnation,  if  valid  otherwise ;  and  restored  her  to  the  King  of  Spain. 
Dana's  Wheaton,  555,  note. 

Other  early  cases  in  the  United  States  courts  on  tliis  question  are  :  The  Betsei/, 
Bee,  67  ;  The  Brothers,  Bee,  76 ;  The  Nunc;/,  Bee,  73 ;  The  Sloop  Betsei/,  1794,  3  Dallas,  6  ; 
The  Magdalena,  1796  {  Talbot  v.  Jansen,  3  Dallas,  133) ;  The  Alfred,  1790,  3  Dallas,  307  ; 
The  Phcebe  Ann,  1796,  3  Dallas,  319;  The  Alerta,  1815,  9  Cranch,  359;  The  Invincible, 
1816,  1  Wheaton,  238;  The  Esfrel.'a,  1819,  4  Wheaton,  298;  La  Conception,  1821,  6 
Wheaton,  235 ;  Bella  Corrunes,  1821,  6  Wheaton,  152 ;  Gran  Para,  1822,  7  Wheaton, 
471;  Arrogante  Barcelones,  1822,  7  Wheaton,  496;  The  Fanny,  1824,  9  Wheaton,  659. 

For  an  admirable  digest  of  these  cases,  the  doctrines  they  establish  and  for  principal 
cases  involving  a  breach  of  our  neutrality  acts,  as  well  as  Great  Britain's  shortcomings 
in  the  civil  war,  see  Dana's  Wheaton,  note  215,  pp.  535-581.  —  Ed. 


45 


706  BELLIGERENTS   AND  NEUTRALS.  [PART  II. 

UNITED   STATES   v.   QUIXCY. 
Supreme  Colrt  of  the  United  States,  ]832. 

(6  Peters,  445.) 

jNIr.  Justice  Thompson  delivered  the  opinion  of  the  court:  ^ 

"  This  case  comes  up  from  the  Circuit  Court  of  the  United  States 
for  the  Maryland  district,  on  a  division  of  opinion  of  the  judges,  upon 
certain  instructions  prayed  for  to  the  jury. 

"The  indictment  upon  which  the  defendant  was  put  upon  his 
trial,  contains  a  number  of  counts,  to  which  the  testimony  did  not 
apply,  and  which  are  not  now  drawn  in  question.  The  twelfth  and 
thirteenth  are  the  only  counts  to  which  the  evidence  applied  ;  and 
the  offence  charged  in  each  of  these  is  substantially  the  same ;  to 
wit,  that  the  said  John  D.  Quincy,  on  the  31st  day  of  December, 
1828,  at  the  district  of  Maryland,  etc.,  with  force  and  arms,  was 
knowingly  concerned  in  the  fitting  out  of  a  certain  vessel  called  the 
Bolivar,  otherwise  called  Las  Damas  Argentinas,  with  intent  that 
such  vessel  should  be  employed  in  the  service  of  a  foreign  people, 
that  is  to  say,  in  the  service  of  the  United  Provinces  of  Kio  de  la 
Plata,  to  commit  hostilities  against  the  subjects  of  a  foreign  prince ; 
that  is  to  say,  against  the  subjects  of  his  imperial  majesty,  the  con- 
stitutional emperor  and  perpetual  defender  of  Brazil,  with  wliom 
the  United  States  then  were,  and  still  are  at  peace,  against  the  form 
of  the  act  of  Congress  in  such  case  made  and  provided. 

"  The  act  of  Congress  under  which  the  indictment  was  found,  6th 
Vol.,  Laws  U.  S.,  321,  sect.  3,  declares,  'that  if  any  person  shall, 
within  the  limits  of  the  United  States,  fit  out  and  arm,  or  attempt 
to  fit  out  and  arm,  or  procure  to  be  fitted  out  and  armed,  or  shall 
knowingly  be  concerned  in  the  furnishing,  fitting  out,  or  arming  of 
any  ship  or  vessel,  with  intent  that  such  ship  or  vessel  shall  be  em- 
ployed in  the  service  of  any  foreign  prince  or  state,  or  of  an}'  colonj'-, 
district  or  people,  to  cruise  or  commit  hostilities  against  the  sub- 
jects, citizens  or  property  of  any  foreign  prince  or  state,  or  of  any 
colony,  district  or  people  with  whom  the  United  States  are  at  peace, 
etc.,  every  person  so  offending,  shall  be  deemed  guilty  of  a  high  mis- 
demeanor, and  shall  be  fined  not  more  than  ten  thousand  dollars, 
and  imprisoned  not  more  than  three  years,  etc.' 

~"  The  testimony  being  closed,  several  prayers,  both  on  the  part  of 

'   Stiitt'ineiit  of  tlie  case  omitted.  —  Ed. 


CHAP.  ITI.]  UNITED    STATES    V.    QUINCY.  707 

the  United  States  and  of  the  defendant,  were  presented  to  the  court 
for  their  opinion  and  direction  to  the  jury  ;  and  upon  wliich  the 
opinions  of  the  judges  were  opposed,  and  whicli  will  now  be  noticed 
in  the  order  in  which  they  were  made. 

"  On  the  part  of  the  defendant  the  court  was  requested  to  charge 
the  jury,  that  if  they  believe  that  when  the  Bolivar  left  Baltimore, 
and  when  she  arrived  at  St.  Thomas,  and  during  the  voyage  from 
Baltimore  to  St.  Thomas,  she  was  not  armed,  or  at  all  prepared  for 
war,  or  in  a  condition  to  commit  hostilities,  the  verdict  must  be  for 
the  defendant. 

"  The  prayer  on  the  part  of  the  United  States  upon  this  part  of 
the  case,  was,  in  substance,  that  if  the  jury  find  from  the  evidence 
that  the  defendant  avus,  within  the  district  of  Maryland,  knowingly 
concerned  in  the  fitting  out  the  privateer  J3oUvar^  with  intent  that 
she  should  be  employed  in  the  manner  alleged  in  the  indictment, 
then  the  defendant  was  guilty  of  the  offence  charged  against  him, 
although  the  jury  should  find  that  the  equipments  of  the  said  pri- 
vateer were  not  complete  within  the  United  States,  and  that  the 
cruise  did  not  actually  commence  until  men  were  recruited,  and 
further  equipments  were  made  at  the  island  of  St.  Thomas  in  the 
West  Indies. 

"  The  instruction  which  ought  to  be  given  to  the  jury  under 
these  prayers  involves  the  construction  of  the  act  of  Congress, 
touching  the  extent  to  which  the  preparation  of  the  vessel  for  cruis- 
ing or  committing  hostilities  must  be  carried  before  she  leaves  the 
limits  of  the  United  States,  in  order  to  bring  the  case  within  the  act. 

"  On  the  part  of  the  defendant  it  is  contended,  that  the  vessel 
must  be  fitted  out  and  armed,  if  not  complete,  so  far  at  least  as  to 
be  prepared  for  war,  or  in  a  condition  to  commit  hostilities. 

"  We  do  not  think  this  is  the  true  construction  of  the  act.  It  has 
been  argued  that,  although  the  ofiience  created  by  the  act  is  a  mis- 
demeanor, and  there  cannot,  legally  speaking,  be  principal  and  ac- 
cessory, yet  the  act  evidently  contemplates  two  distinct  classes  of 
offenders.  The  principal  actors,  who  are  directly  engaged  in  pre- 
paring the  vessel,  and  another  class,  \vho,  though  not  the  chief 
actors,  are  in  some  w^ay  concerned  in  the  preparation. 

"  The  act,  in  this  respect,  may  not  be  drawn  M'ith  very  great  per- 
spicuity. But  should  the  view  taken  of  it  by  the  defendant's  coun- 
sel' be  deemed  correct  (which,  however,  we  do  not  admit),  it  is  not 
perceived  how  it  can  affect  the  present  case.  For  the  indictment, 
according  to  this  construction,  places  the  defendant  in  the  second- 
arj'  class  of  offenders.  He  is  only  charged  with  being  knowingly 
concerned  in  the  fitting  out  the  vessel,  Avith  intent  that  she  should 
be  employed,  etc. 


708  BELLIGERENTS    AND   NEUTRALS.  [PART  11. 

"To  bring  him  within  the  words  of  the  act,  it  is  not  necessary  to 
charge  him  with  being  concerned  in  fitting  out  and  arming.  The 
words  of  the  act  are,  fitting  out  or  arming.  Either  Avill  constitute 
the  offence.  But  it  is  said  such  fitting  out  must  be  of  a  vessel 
armed  and  in  a  condition  to  commit  hostilities,  otherwise  the  minor 
actor  may  be  guilty  when  the  greater  would  not.  For,  as  to  the  lat- 
ter, there  must  be  a  fitting  out  and  arming  in  order  to  bring  him 
within  the  law.  If  this  construction  of  the  act  be  well  founded,  the 
indictment  ought  to  charge,  that  the  defendant  was  concerned  in 
fitting  out  the  Bolivar,  being  a  vessel  fitted  out  and  armed,  etc.  But 
this,  we  apprehend,  is  not  required.  It  would  be  going  beyond  the 
plain  meaning  of  the  words  used  in  defining  the  offence.  It  is  suf- 
ficient if  the  indictment  charges  the  offence  in  the  words  of  the  act ; 
and  it  cannot  be  necessary  to  prove  what  is  not  charged.  It  is  true, 
that,  with  respect  to  tliose  who  have  been  denominated  at  the  bar 
the  chief  actors,  the  law  would  seem  to  make  it  necessary  that  they 
should  be  charged  with  fitting  out  and  arming.  These  words  may 
require  that  both  should  concur ;  and  the  vessel  be  put  in  a  con- 
dition to  commit  hostiUties,  in  order  to  bring  her  within  the  law. 
But  an  attempt  to  fit  out  and  arm  is  made  an  offence.  This  is  cer- 
tainly doing  something  short  of  a  complete  fitting  out  and  arming. 
To  attempt  to  do  an  act  does  not,  either  in  law  or  in  common  par- 
lance, imply  a  com]3letion  of  the  act,  or  any  defuiite  progress  to- 
wards it.  Any  effort  or  endeavor  to  effect  it  will  satisfy  the  terms 
of  the  law. 

"  This  varied  phraseology  in  the  law  was  probably  employed  with 
a  view  to  embrace  all  persons  of  every  description  who  might  be  en- 
gaged,  directly  or  indirectly  in  preparing  vessels  with  intent  that 
they  should  be  employed  in  committing  hostilities  against  any 
powers  with  whom  the  United  States  were  at  peace.  Different  de- 
grees  of  criminality  Avill  necessarily  attach  to  persons  thus  engaged. 
Hence  the  great  latitude  given  to  the  courts  in  affixing  the  punish- 
ment, viz.,  a  fine  not  more  than  ten  thousand  dollars  and  imjirison- 
ment  not  more  than  three  years. 

"  We  are,  accordingly,  of  opinion,  that  it  is  not  necessary  that  the 
jury  should  believe  or  find  that  the  Bolivar,  when  she  left  Balti- 
more, and  when  she  arrived  at  St.  Thomas,  and  during  the  voyage 
from  Baltimore  to  St.  Thomas,  was  armed,  or  in  a  condition  to  com- 
mit hostilities,  in  order  to  find  the  defendant  guilty  of  the  offence 
charged  in  the  indictment. 

"The  first  instruction,  therefore,  prayed  on  the  part  of  the  de- 
fendant, must  be  denied,  and  that  on  the  part  of  the  United  States 
given. 


CHAP.  III.]  UNITED    STATES    V.    QUINCY.  709 

"  The  second  and  third  instructions  asked  on  tlie  part  of  tlie  de- 
fendant, were: 

"  That  if  tlie  jury  believe  that,  when  the  Bolivar  was  fitted  and 
equipped  at  Baltimore,  the  owner  and  equipper  intended  to  go  to 
the  West  Indies  in  search  of  funds,  with  which  to  arm  and  equip 
the  said  vessel  and  had  no  i^resent  intention  of  using  or  employing 
the  said  vessel  as  a  privateer,  but  mtended,  when  he  equipped  her,  to 
go  to  the  West  Indies,  to  endeavor  to  raise  funds  to  prepare  her  for 
a  cruise ;  then  the  defendant  is  not  guilty. 

"  Or  if  the  jury  believe  that,  when  the  Bolivar  was  equipped  at 
Baltimore,  and  when  she  left  the  United  States,  the  equipper  had 
no  fixed  intention  to  eniphnj  her  as  a  privateer,  but  had  a  wish  so 
to  employ  her,  the  fulfilment  of  which  wish  depended  on  his  ability 
to  obtain  funds  in  the  West  Indies,  for  the  purpose  of  arming  and 
preparing  her  for  war ;  then  the  defendant  is  not  guilty. 

"  We  think  these  instructions  ought  to  be  given.     The  offence 
consists  principally  in  the  intention  with  which  the  preparations 
were  made.     These  preparations,  according  to  the  very  terms  of  the 
act,  must  be  made  within  the  limits  of  the  United  States ;  and  it  is  : 
equally  necessary  that  the  intention  with  respect  to  the  employ- j 
ment  of  the  vessel  should  be  formed  before  she  leaves  the  United  J 
States.     And  this  must  be  a  fixed  intention;  not  conditional  or  con-H 
tingent,  depending  on  some  future  arrangements.     This  intention  is 
a  question  belonging  exclusively  to  the  jury  to  decide.     It  is  the 
material  point  on  which  the  legality  or  criminality  of  the  act  must 
turn ;  and  decides  whether   the   adventure  is  of   a  commercial  or 
warlike  character. 

"  The  law  does  hot  prohibit  armed  vessels  belonging  to  citizens  of 
the  United  States  from  sailing  out  of  our  ports  ;  it  only  requires 
the  owners  to  give  security  (as  was  done  in  the  present  case)  that 
such  vessels  shall  not  be  employed  by  them  to  commit  hostilities 
against  foreign  powers  at  peace  with  the  United  States.  The  col- 
lectors are  not  authorized  to  detain  vessels,  although  manifestly  i 
built  for  warlike  purposes,  and  about  to  depart  from  the  United; 
States,  unless  circumstances  shall  render  it  probable  that  such  vessels 
are  intended  to  be  employed  by  the  owners  to  commit  hostilities 
against  some  foreign  power,  at  peace  with  the  United  States. 

"  All  the  latitude,  therefore,  necessary  for  commercial  purposes,  is 
given  to  our  citizens ;  and  they  are  restrained  only  from  such  acts 
as  are  calculated  to  involve  the  country  in  war. 

"  The  second  and  third  instructions,  asked  on  the  part  of  the 
United  States,  ought  also  to  be  given.  For,  if  the  jury  shall  find 
(as  the  instructions  assume)  that,  the   defendant   was    knowingly 


710  BELLIGERENTS   AND    NEUTRALS.  [PART   II. 

concerned  in  fitting  out  the  Bolivar  within  the  United  States,  with 
the  intent  that  she  should  he  employed  as  set  forth  in  the  indict- 
ment, that  intention  being  defeated  by  what  might  afterwards  take 
place  in  the  West  Indies,  would  not  purge  the  offence,  Avhich  was 
previously  consummated.  It  is  not  necessary  that  the  design  or  in- 
tention should  be  carried  into  execution  in  order  to  constitute  the 
offence. 

"  The  last  instruction  or  opinion  asked  on  the  part  of  the  de- 
fendant, was : 

"•  That,  according  to  the  evidence  in  the  cause,  the  United  Prov- 
inces of  Rio  de  la  Plata  is,  and  was,  at  the  time  of  the  offence  al- 
leged in  the  indictment,  a  government  acknowledged  by  the  United 
States,  and  thus  was  a  state,  and  not  Sijjeopley  within  the  meaning 
of  the  act  of  Congress,  under  which  the  defendant  is  indicted  ;  the 
word  people  in  that  act  being  intended  to  describe  communities 
under  an  existing  government,  not  recognized  by  the  United 
States ;  and  that  the  indictment  cannot  be  supposed  on  this  evi- 
dence. 

"•  The  indictment  charges  that  the  defendant  was  concerned  in  fit- 
ting out  the  Bolivar,  with  intent  that  she  should  be  employed  in  the 
service  of  a  foreign  jMoj^le ;  that  is  to  say,  in  the  service  of  the 
United  Provinces  of  Rio  de  la  Plata.  It  was  in  evidence,  that  the 
United  Provinces  of  Rio  de  la  Plata  had  been  regularly  acknowl- 
edged as  an  independent  nation  by  the  executive  department  of  the 
government  of  the  United  States,  before  the  year  1827.  And,  there- 
fore, it  is  argued  that  the  word  people  is  not  properly  applicable  to 
that  nation  or  power. 

"  The  objection  is  one  purely  technical,  and  we  think  not  well- 
I  founded.  The  word  pjeopAe,  as  here  used,  is  merely  descriptive  of 
the  power  in  whose  service  the  vessel  was  intended  to  be  employed; 
and  it  is  one  of  the  denominations  applied  by  the  act  of  Congress  to 
a  foreign  power.  The  words  are,  '  in  the  service  of  any  foreign 
prince  or  state;  or  of  any  colony,  district  or  "peojile^  The  applica- 
tion of  the  word  p>^ople  is  rendered  sufficiently  certain  by  what  fol- 
lows under  the  videlicet,  '  that  is  to  say,  the  United  Provinces  of 
Rio  de  la  Plata.'  This  particularizes  that  which  by  the  word  people 
is  loft  too  general.  The  descriptions  are  no  way  repugnant  or  in- 
consistent with  each  other,  and  may  well  stand  together.  That 
which  comes  under  the  videlicet,  only  serves  to  explain  what  is 
doubtful  and  obscure  in  the  word  7:>eojD/e, 

"  This  instruction  must  therefore  be  denied,  and  the  one  asked  on 
the  part  of  the  United  States,  viz.,  that  the  indictment  is  sufficient 
in  law,  must  be  given. 

"  These  answers  must  accordingly  be  certified  to  the  circuit  court." 


CHAP.  III.]  UNITED   STATES   V.    THE   "  METEOR."  711 

UNITED   STATES   v.   THE   ''METEOR." 
United  States  Cikcuit  Court   for  So.  New  York,  1866. 

(3  American  Law  Revieiu,  17.3.) 

The  Meteor  was  built  in  the  United  States  in  1865,  during  the  war 
theu  pending  between  Chile  and  Spain,  and  sold  to  the  Chilean  govern- 
ment, without  armament,  and  then,  it  was  alleged,  commissioned  when 
in  the  United  States,  as  a  Chilean  privateer.  She  was  libelled  in  New 
York  and  seized  January  23,  1866.  Upon  a  hearing  before  Judge 
Betts,  that  learned  judge  held  that  there  must  be  a  decree  condemning 
and  forfeiting  the  property  under  seizure,  in  accordance  with  the 
prayer  of  the  libel. ^ 

Mr.  Justice  Nelson  :  — 

"This  is  an  appeal  in  admiralty  from  a  decree  of  condemnation  in 
a  libel  of  information  for  the  violation  of  the  neutrality  laws  of  the 
United  States.  We  have  examined  the  pleadings  and  proofs  in  the  case, 
and  have  been  unable  to  concur  in  the  judgment  of  the  court  below, 
but  from  the  pressure  of  other  business  have  not  found  time  to  write 
out  at  large  the  grounds  and  reasons  for  the  opinion  arrived  at.  We 
must,  therefore,  for  the  present,  be  content  in  the  statement  of  our 
conclusions  in  the  matter. 

"  1.  Although  negotiations  were  commenced  and  carried  on  be- 
tween the  owners  of  the  Meteor  and  agents  of  the  Government  of 
Chile,  for  the  sale  of  her  to  the  latter,  with  the  knowledge  that  she 
would  be  employed  against  the  Government  of  Spain,  with  which. 
Chile  was  at  war,  yet  these  negotiations  failed  and  came  to  an  end 
from  the  inability  of  the  agents  to  raise  the  amount  of  the  purchase- 
money  demanded ;  and  if  the  sale  of  the  vessel,  in  its  tlien  condition 
and  equipment,  to  the  Chilean  Government  would  have  been  a  viola- 
tion of  our  neutrality  laws,  of  which  it  is  unnecessary  to  express  any 
opinion,  the  termination  of  the  negotiation  put  an  end  to  this  ground 
of  complaint. 

"  2.  The  furnishing  of  the  vessel  with  coal  and  provisions  for  a 
voyage  to  Panama,  or  some  other  port  of  South  America,  and  the 
purpose  of  the  owners  to  send  her  thither,  in  our  judgment,  was  not 
in  pursuance  of  an  agreement  or  understanding  with  the  agents  of 
the  Chilean  Government,  but  for  the  purpose  and  design  of  finding  a  I 
market  for  her,  and  that  the  owners  were  free  to  sell  her  on  her 

1  Tlie  above  statement  of  the  case  is  taken  from  3  Wliarton's  Digest,  561.  Tlie 
case  is  briefly  reported  in  tlie  American  Law  Keview,  401.  —  Ed. 


712  BELLIGERENTS    AND    NEUTRALS.  [PART  IL 

arrival  there  to  the  Government  of  Cliile  or  of  Spain,  or  of  any  other 
Government  or  person  with  wliom  tliey  might  be  able  to  negotiate 
a  sale. 

"  3.  The  witnesses  chiefly  relied  on  to  implicate  the  owners  in  the 
negotiations  with  the  agents  of  the  Chilean  Government,  with  a  view 
and  intent  of  fitting  out  and  equipping  the  vessel  to  be  employed  in 
the  war  with  Spain,  are  persons  who  had  volunteered  to  negotiate 
on  behalf  of  the  agents  with  the  owners  in  expectation  of  large  com. 
missions  in  the  event  of  a  sale,  or  persons  in  the  expectation  of  em. 
ployment  in  some  situation  in  the  command  of  the  vessel,  and  verj- 
clearly  manifest  their  disappointment  and  chagrin  at  the  failure  of 
the  negotiations,  and  whose  testimony  is  to  be  examined  with  con- 
siderable distrust  and  suspicion.  We  are  not  satisfied  that  a  case  is 
made  out,  upon  the  proofs,  bi  a  violation  of  the  neutrality  laws  of 
the  United  States,  and  must,  therefore,  reverse  the  decree  below, 
and  enter  a  decree  dismissing  the  libel."  ^ 

1  An  appeal  was  taken  by  tlic  government  from  tlie  decision  of  tlie  Circuit  Court 
to  the  Supreme  Court  of  the  United  States,  but  was  not  prosecuted  tea  hearing,  being 
dismissed  by  consent,  November  9,  1868. 

For  a  criticism  on  Judge  Betts'  ruling,  see  an  article  in  the  "North  American 
Review  "  for  October,  1866  (Vol.  103,  p.  188). 

Dana  says  of  the  Practice  of  the  United  States  (note  to  Wheaton,  p.  562):  "As 
to  the  preparing  of  vessels  within  our  jurisdiction  for  subsequent  hostile  operations, 
the  test  we  have  applied  has  not  been  the  extent  and  character  of  the  preparations,  but 
the  intent  with  which  the  particular  acts  are  done.  If  any  person  does  any  act,  or 
attempts  to  do  any  act,  toward  such  preparation,  with  tiie  intent  that  the  vessel  shall 
be  employed  in  hostile  operations,  he  is  guilty,  without  reference  to  the  completion  of 
the  preparations,  or  to  the  extent  to  which  they  have  gone,  and  although  his  attempt 
may  have  resulted  in  no  definite  progress  towards  the  completion  of  the  preparations. 
The  procuring  of  materials  to  be  used,  knowingly  and  with  the  intent,  etc.,  is  an 
offence.  *  *  * 

"On  the  point  of  the  intent,  more  nicety  and  discrimination  are  necessary.  If  the 
person  charged  has  himself  the  control  of  the  vessel,  to  put  her  into  foreign  belligerent 
service,  the  question  of  the  intent  to  employ  her  Is  simjjle.  If  he  has  not,  he  is  still 
chargeable  with  doing  acts,  or  being  knowingly  concerned  in  the  doing  of  acts,  of 
or  towards  the  preparation,  with  the  intent  that  the  vessel  shall  be  so  employed 
though  others  may  control  her  during  the  preparations.  But  the  intent  must  be 
that  she  shall  be  so  employed;  and  the  intent  must  be  a  fixed  and  present  intent,  and 
not  a  wish  or  d.'sire  merely  that  she  may  be.  If  there  is  a  contingency,  it  must, 
to  exculpate  the  party,  be  one  which  forms  a  condition  precedent  to  the  intent,  and 
not  merely  a  condition  precedent  to  the  employment,  or  a  condition  subsequent  which 
may  defeat  the  intent.  Thus,  if  the  owner  of  a  vessel,  not  completely  ready  for 
hostile  operations,  with  instructions  to  her  commander  to  complete  her  preparation 
and  obtain  letters  of  marque  in  the  port  of  destination,  and,  in  case  of  failure  in 
ol)taining  the  commission  and  equipment,  to  take  a  cargo  and  return,  he  would 
doubtless  be  guilty;  for  he  has  entered  on  the  execution  of  his  purpose,  and  those 
are  only  the  ordinary  contingencies  to  all  employments,  by  which  they  may  be 
defeated.     But  the  purpose  to  which  he  shall  put  his  vessel  after  her  arrival  may 


CHAP.  III.]         THE   "ALABAMA"    CLAIMS   AND   AWARD.  713 


THE   "ALABAMA"   CLAIMS   AND  AWARD,    1872. 

Tbeaty  between  the  United  States  and  Great  Bkitain, 
Concluded  May  8,  1871. 

Ai'ticle  I.  —  Whereas  differences  have  arisen  between  the  Govern- 
ment of  the  United  States  and  the  Government  of  her  Britannic 
Majesty,  and  still  exist,  growing  out  of  the  acts  committed  by  the 
several  vessels  which  have  given  rise  to  the  claims  generically  known 
as  the  "  Alabama  claims  " : 

And  whereas  her  Britannic  Majesty  has  authorized  her  High  Com- 
missioners and  Plenipotentiaries  to  express,  in  a  friendly  spirit,  the 

depend  on  circumstances  so  entirely  contingent  and  fortuitous,  as  to  relieve  from  tlie 
charge  of  a  fixed  intent  at  the  time  he  sends  her  out. 

"  It  will  be  seen  at  once,  by  these  abstract  definitions,  that  our  rules  do  not  interfere  , 
with  bona  Jide  commercial  dealings  in  contraband  of  war.  An  American  merchant 
may  build  and  fully  arm  a  vessel,  and  supply  her  with  stores,  and  offer  her  for  sale  in 
our  own  market.  If  he  does  any  acts,  as  an  agent  or  servant  of  a  belligerent,  or  in 
pursuance  of  an  arrangement  or  understanding  with  a  belligerent,  that  slie  shall  be 
employed  in  hostilities  when  sold,  he  is  guilty.  He  may,  without  violating  our  law, 
send  out  such  a  vessel,  so  equipped,  under  the  flag  and  papers  of  his  own  country, 
with  no  more  force  of  crew  than  is  suitable  for  navigation,  with  no  right  to  resist 
search  or  seizure,  and  to  take  the  cliances  of  capture  as  contraband  merchandise,  of 
blockade,  and  of  a  market  in  a  belligerent  port.  In  such  case,  the  extent  and  character 
of  the  equipments  is  as  immaterial  as  in  the  other  class  of  cases.  The  intent  is  all. 
The  act  is  open  to  great  suspicions  and  abuse,  and  the  line  may  often  be  scarcely  trace- 
able; yet  tiie  principle  is  clear  enough.  Is  the  intent  one  to  prepare  an  article  of  con- 
traband merchandise,  to  be  sent  to  the  market  of  a  belligerent,  subject  to  the  chances 
of  capture  and  of  the  market?  Or,  on  the  otiier  hand,  is  it  to  fit  out  a  vessel  which 
shall  leave  our  port  to  cruise,  immediately  or  ultimately,  against  tiie  commerce  of  a 
friendly  nation  ?  The  latter  we  are  bound  to  prevent.  The  former  tiie  belligerent 
must  prevent.  In  the  former  case,  tiie  ship  is  merchandise,  under  bona  jkie  neutral 
flag  and  papers,  with  a  port  of  destination,  subject  to  search  and  capture  as  contraband 
merchandise  by  the  other  belligerent,  or  to  the  risks  of  blockade,  and  with  no  right  to 
resist  search  and  seizure,  and  liable  to  be  treated  as  a  pirate  by  an}-  nation,  if  she  does 
any  act  of  hostility  to  the  property  of  a  belligerent,  as  much  as  if  she  did  it  to  that  of 
a  neutral.  Such  a  trade  in  contraband,  a  belligerent  may  cut  ofl'by  cruising  the  seas 
and  by  blockading  his  enemy's  ports.  But,  to  protect  himself  against  vessels  sailing 
out  of  a  neutral  port  to  commit  hostilities,  it  would  be  necessary  for  him  to  hover  off 
the  ports  of  the  neutral ;  and,  to  do  tliat  effectually,  he  must  maintain  a  kind  of  blockade 
of  the  neutral  coast ;  which,  as  neutrals  will  not  permit,  they  ought  not  to  give 
occasion  for." 

In  the  Terceira  Affair,  1827,  it  appeared  that  an  expedition  left  English  ports  to 
attack  the  government  of  Portugal.  A  British  squadron  was  despatched  in  pursuit, 
and  finding  the  vessels  of  the  expedition  in  Portuguese  waters,  the  Englisii  captain  kept 
a  close  -wMtch  upon  them  and  finally  ordered  tliem  out  of  the  neighborhood,  i'or 
furtlier  details,  see  3  Phillimore,  Int.  Law,  287.  —  Ed. 


714  BELLIGERENTS    AND   NEUTRALS.  [PART  II. 

regret  felt  by  her  Majesty's  Government  for  the  escape,  under  what- 
ever circumstances,  of  the  Alabama  and  other  vessels  from  British 
ports,  and  for  the  depredations  committed  by  those  vessels : 

Now,  in  order  to  remove  and  adjust  all  complaints  and  claims  on  the 
part  of  the  United  States,  and  to  provide  for  the  speedy  settlement  of 
such  claims  which  are  not  admitted  by  her  Britannic  Majesty's  Govern- 
ment, the  high  contracting  parties  agree  that  all  the  said  claims  growing 
out  of  acts  committed  by  the  aforesaid  vessels  and  generically  known 
as  the  "Alabama  claims,"  shall  be  referred  to  a  tribunal  of  arbitration 
composed  of  five  arbitrators,  to  be  appointed  in  the  following  manner, 
that  is  to  say :  One  shall  be  named  by  the  President  of  the  United 
States ;  one  shall  be  named  by  her  Britannic  Majesty  ;  his  Majesty 
the  King  of  Italy  shall  be  requested  to  name  one ;  the  President  of  the 
Swiss  Confederation  shall  be  requested  to  name  one ;  and  his  Majesty 
the  Emperor  of  Brazil  shall  be  requested  to  name  one.  *  *  * 

Article  II.  —  The  arbitrators  shall  meet  at  Geneva,  in  Switzerland, 
at  the  earliest  convenient  day  after  they  shall  have  been  named,  and 
shall  proceed  impartially  and  carefully  to  examine  and  decide  all 
questions  that  shall  be  laid  before  them  on  the  part  of  the  Governments 
of  the  United  States  and  her  Britannic  Majesty  respectively.  All 
questions  considered  by  the  tribunal,  including  the  final  award,  shall 
be  decided  by  a  majority  of  all  the  arbitrators.  *  *  * 

Article  VI. — In  deciding  the  matters  submitted  to  the  arbitrators 
they  shall  be  governed  by  the  following  three  rules,  which  are  agreed 
upon  by  the  high  contracting  parties,  as  rules  to  be  taken  as  applicable 
to  the  case,  and  by  such  principles  of  international  law,  not  inconsistent 
therewith,  as  the  arbitrators  shall  determine  to  have  been  applicable 
to  the  case. 

"RULES. 

"A  neutral  government  is  bound  — 

"First.  To  use  due  diligence  to  prevent  the  fitting  out,  arming,  or 
equipping,  within  its  jurisdiction,  of  any  vessel  which  it  has  reasonable 
ground  to  believe  is  intended  to  cruise  or  to  carry  on  war  against  a 
power  with  which  it  is  at  peace ;  and  also  to  use  like  diligence  to  pre- 
vent the  departure  from  its  jurisdiction  of  any  vessel  intended  to  cruise 
or  carry  on  war  as  above,  such  vessel  having  been  specially  adapted,  in 
whole  or  in  part,  within  such  jurisdiction,  to  warlike  use. 

"  Secondly.  Not  to  permit  or  suffer  either  belligerent  to  make  use  of 
its  ports  or  waters  as  the  base  of  naval  operations  against  the  other,  or 
for  tlie  purpose  of  the  renewal  or  augmentation  of  military  supplies  or 
arms,  or  the  recruitment  of  men. 

"  Thirdly.     To  exercise  due  diligence  in  its  own  ports  and  waters, 


CHAP.  Ill]         THE    "ALABAMA"    CLAIMS   AND    A^yARD.  715 

and  as  to  all  jiersous  within  its  jurisdiction,  to  prevent  any  violation 
of  the  foregoing  obligation  and  duties. 

"  Her  Britannic  Majesty  has  commanded  her  high  commissioners 
and  plenipotentiaries  to  declare  that  Her  Majesty's  Government  can- 
not assent  to  the  foregoing  rules  as  a  statement  of  the  principles  of 
international  law  which  were  in  force  at  the  time  when  the  claims 
mentioned  in  Article  I.  arose,  but  that  Her  Majesty's  Government, 
in  order  to  evince  its  desire  of  strengthening  the  friendly  relations 
between  the  two  countries,  and  of  making  satisfactory  provision  for 
the  future,  agrees  that  in  deciding  the  questions  between  the  two 
countries,  arising  out  of  those  claims,  the  arbitratoi's  should  assume 
that  Her  Majesty's  Government  had  undertaken  to  act  ujion  the 
principles  set  forth  in  these  rules. 

"  And  the  high  contracting  parties  agree  to  observe  these  rules  as 
between  themselves  m  future,  and  to  bring  them  to  the  knowledge 
of  other  maritime  powers,  and  to  invite  them  to  accede  to  them." 

DECISION    AND    AWARD. 

"  The  tribunal  having  since  fully  taken  into  their  consideration 
the  treaty  and  also  the  cases,  counter- cases,  documents,  evidence, 
and  arguments,  and  likewise  all  other  communications  made  to  them 
by  the  two  parties  during  the  progress  of  their  sittings,  and  having 
impartially  and  carefully  examined  the  same, 

"  Has  arrived  at  the  decision  embodied  in  the  present  award : 

"  Whereas,  having  regard  to  the  sixth  and  seventh  articles  of  the 
said  treaty,  the  arbitrators  are  bound  under  the  terms  of  the  said 
sixth  article,  '  in  deciding  the  matters  submitted  to  them,  to  be  gov- 
erned by  the  three  rules  therein  specified  and  by  such  principles  of 
international  law,  not  inconsistent  therewith  as  the  arbitrators  shall 
determine  to  have  been  applicable  to  the  case ; ' 

"  And  whereas  the  '  due  diligence,'  referred  to  in  the  first  and 
third  of  the  said  rules,  ought  to  be  exercised  by  neutral  govern-  , 
ments  in  exact  proportion  to  the  risks  to  which  either  of  the  bellig- 
erents may  be  exposed,  from  a  failure  to  fulfill  the  obligations  of 
neutrality  on  their  part ; 

"  And  whereas  the  circumstances  out  of  which  the  facts  consti- 
tuting the  subject-matter  of  the  present  controversy  arose  were  of  a 
nature  to  call  for  the  exercise  on  the  part  of  Her  Britannic 
Majesty's  Government  of  all  possible  solicitude  for  the  observance 
of  the  rights  and  duties  involved  in  the  proclamation  of  neutrality 
issued  by  Her  Majesty  on  the  13th  day  of  May,  18G1. 

"And  whereas  the  effects  of  a  violation  of  neutrality,  committed 


716  BELLIGERENTS   AND    NEUTRALS.  [PART  IT. 

by  means  of  the  construction,  equipment,  and  armament  of  a  vessel 
is  not  done  away  with  by  any  connnission  wiiich  the  govern- 
ment of  the  belligerent  power,  benefited  by  the  violation  of 
neutrality,  may  afterwards  have  granted  to  that  vessel;  and 
the  ultimate  step,  by  which  the  ofi:"ense  is  completed,  cannot  be 
admissible  as  a  ground  for  the  absolution  of  the  offender,  nor  can 
the  consummation  of  his  fraud  become  the  means  of  establishing 
his  innocence. 

"  And  whereas  the  privilege  of  extra-territoriality,  accorded  to 
vessels  of  war,  has  been  admitted  into  the  law  of  nations,  not  as  an 
absolute  right,  but  solely  as  a  proceeding  founded  on  the  principle 
of  courtesy  and  mutual  deference  between  different  nations,  and, 
therefore,  can  never  be  appealed  to  for  tlie  protection  of  acts  done  in 
violation  of  neutrality ; 

"  And  whereas  the  absence  of  a  previous  notice  cannot  be  re- 
garded as  a  failure  in  any  consideration  required  by  the  law  of  na- 
tions, in  those  cases  in  which  a  vessel  carries  with  it  its  own  con- 
demnation ; 

And  wliereas,  in  order  to  impart  to  any  supplies  of  coal  a  charac- 
ter inconsistent  with  the  second  rule,  prohibiting  the  use  of  neutral 
ports  or  waters,  as  a  base  of  naval  operations  for  a  belligerent,  it  is 
necessary  that  the  said  supplies  should  be  connected  with  special 
circumstances,  of  time,  of  persons,  or  of  place,  w^liich  may  combine 
to  give  them  such  character; 

"And  whereas,  with  respect  to  the  vessel  called  the  Alabama,  it 
clearly  results  from  all  the  facts  relative  to  the  construction  of  the 
ship,  at  first  designated  by  the  number  '  290,'  in  the  port  of  Liver- 
pool, and  its  equipment  and  armament  in  the  vicinity  of  Terceira, 
througli  the  agency  of  the  vessels  called  the  Agrippbia  and  the 
Bahama,  dispatched  from  Great  Britain  to  that  end,  that  the  British 
Government  failed  to  use  due  dihgence  in  the  performance  of  its 
neutral  obligations,  and  especially  that  it  omitted,  notwithstanding 
the  warnings  and  official  representations  made  by  tlie  diplomatic 
agents  of  the  United  States  during  the  construction  of  the  said 
number  '290,'  to  take  in  due  time  any  effective  measures  of  preven- 
tion, and  that  those  orders  which  it  did  give  at  last,  for  the  deten- 
tion of  the  vessel,  were  issued  so  late  that  their  execution  was  not 
practicable ; 

"  And  whereas,  after  the  escape  of  that  vessel,  the  measures 
taken  for  its  pursuit  and  arrest  were  so  imperfect  as  to  lead  to  no  re- 
sult, and  therefore  cannot  be  considered  sufficient  to  release  Great 
Britain  from  the  responsibility  already  incurred  ; 

"  And  whereas,  in  despite  of  the  violations  of  the  neutrality  of 


CHAP.  III.]         THE    "ALABAMA"    CLAIMS    AND   AWARD.  717 

Great    Britain,  committed    by   the    '  290,'   tliis    same   vessel,  later 
known  as  the   Confederate  cruiser  Alabama^  was  on  several  occa- 
sions freely  admitted  into  the  ports  of  the  colonies  of  Great  Britain, 
instead  of  being  proceeded  against  as  it  ouglit  to  have  been  in  any  » 
and  every  port  within  British  jurisdiction  in  which  it  might  have  i 
been  found ; 

"  And  whereas  the  Government  of  ITer  Britannic  Majesty  cannot 
justify  itself  for  a  failure  in  due  diligence  on  the  plea  of  insuffi- 
ciency of  the  legal  means  of  action  which  it  jDossessed : 

"  Four  of  the  arbitrators  for  the  reasons  above  assigned,  and  the 
fifth,  for  reasons  separately  assigned  by  him,  are  of  opinion  that 
Great  Britain  has  in  this  case  failed,  by  omission,  to  fulfill  the  duties 
prescribed  in  the  first  and  the  third  of  the  rules,  established  by  the 
sixth  article  of  the  treaty  of  Washington. 

"  And  whereas,  with  respect  to  the  vessel  called  the  Florida,  it 
results  from  all  the  facts  relative  to  the  construction  of  the  Oreto  in 
the  port  of  Liverpool,  and  to  its  issue  therefrom,  which  facts  failed 
to  induce  the  authorities  in  Great  Britain  to  resort  to  measures  ade- 
quate to  prevent  the  violation  of  the  neutrality  of  that  nation,  not- 
withstanding the  warnings  and  repeated  representations  of  the 
agents  of  the  United  States ;  that  Her  Majesty's  government  has 
failed  to  use  due  diligence  to  fulfill  the  duties  of  neutrality ; 

"  And  whereas  it  likewise  results  from  all  the  facts  relative  to  the 
stay  of  the  Oreto  at  Xassau,  to  her  issue  from  that  port,  to  her  en- 
listment of  men,  to  her  supplies,  and  to  her  armament,  with  the  co- 
operation of  the  British  vessel  Prince  Alfred^  at  Green  Cay,  that 
there  was  negligence  on  the  part  of  the  British  colonial  autho- 
rities ; 

"  And  whereas,  notwithstanding  the  violation  of  the  neutrality  of 
Great  Britain,  committed  by  the  Oreto,  this  same  vessel,  later 
known  as  the  Confederate  cruiser  Florida,  was,  nevertheless,  on 
several  occasions  freely  admitted  into  the  ports  of  British  colonies  ; 

"  And  whereas  the  judicial  acquittal  of  the  Oreto  at  Nassau  can- 
not relieve  Great  Britain  from  the  responsibility  incurred  by  her 
under  the  principles  of  international  law ;  nor  can  the  fact  of  the 
entry  of  the  Florida  into  the  Confederate  port  of  Mobile,  and  of  its 
stay  there  during  four  months,  extinguish  the  responsibility  pre- 
viously to  that  time  incurred  by  Great  Britain  ; 

"  For  these  reasons  the  tribunal,  by  a  majority  of  four  voices  to 
one,  is  of  opinion,  that  Great  Britain  has  in  this  case  failed,  by 
omission,  to  fulfill  the  duties  prescribed  in  the  first,  in  the  second, 
and  in  the  third,  of  the  rules  established  by  Article  VI.,  of  the 
Treaty  of  Washington. 


718  BELLIGERENTS   AND   NEUTRALS.  [PART  IL 

"  And  whereas,  with  respect  to  tlie  vessel  called  the  Shenandoah, 
it  results  from  all  the  facts  relative  to  the  departure  froui  London 
of  the  merchant  vessel,  the  Sea  King,  and  to  the  transformation  of 
that  ship  into  a  Confederate  cruiser  under  tlie  name  of  the  Shenan- 
doah, near  the  island  of  Madeira,  tliat  tlie  Government  of  Her  Bri- 
tannic Majesty  is  not  chargeable  with  any  failure,  down  to  that  date, 
in  the  use  of  due  diligence  to  fulfill  the  duties  of  neutrality  ; 

"  But  whereas  it  results  from  all  the  facts  connected  with  the 
stay  of  the  Shenandoah  at  Melbourne,  and  especially  with  the 
augmentation  which  the  British  Government  itself  admits  to  have 
been  clandestinely  effected  of  her  force,  by  the  enlistment  of  men 
within  that  port,  that  there  was  negligence  on  the  part  of  the 
authorities  at  that  place ; 

"  For  these  reasons  the  tribunal  is  unanimously  of  opinion,  that 
Great  Britain  has  not  failed,  by  any  act  or  omission,  '  to  fulfill  any 
of  the  duties  prescribed  by  the  three  rules  of  Article  VI.  in  the 
Treaty  of  Washington,  or  by  the  principles  of  international  law  not 
inconsistent  therewith,'  in  respect  to  the  vessel  called  the  Shenan- 
doah, during  the  period  of  time  anterior  to  her  entry  into  the  port 
of  Melbourne ; 

"  And,  by  a  majority  of  three  to  two  voices,  the  tribunal  decides 
that  Great  Britain  has  failed,  by  omission,  to  fulfill  the  duties  pre- 
scribed by  the  second  and  third  of  the  rules  aforesaid,  in  the  case  of 
this  same  vessel,  from  and  after  her  entry  into  Ilobson's  Bay,  and 
is,  therefore,  responsible  for  all  acts  cjnnnitted  by  that  vessel  after 
her  departure  from  Melbourne,  on  the  18th  day  of  February,  1865. 

"And  so  far  as  relates  to  the  vessels  called  the  Tuscaloosa  (ten- 
der to  the  Alabama),  the  Clarence,  the  Tacony,  and  the  Archer,  (ten- 
ders to  the  Florida),  the  tribunal  is  unanimously  of  opinion,  that 
such  tenders  or  auxiliary  vessels,  being  properly  regarded  as  acces- 
sories, must  necessarily  follow  the  lot  of  their  principals,  and  be  sub- 
mitted to  the  same  decision  which  applies  to  them  respectively. 

"And  so  far  as  relates  to  the  vessel  c'aW.q,^  B,etrihxLtion,X\i%  tri- 
bunal, by  a  majority  of  three  to  two  voices,  is  of  opinion,  that  Great 
Britain  has  not  failed,  by  any  act  or  omission,  to  fulfill  any  of  the 
duties  prescribed  by  the  three  rules  of  Article  VI.,  in  the  Treaty  of 
Washington,  or  by  the  principles  of  international  law  not  incon- 
sistent therewith. 

"  And  so  far  as  relates  to  the  vessels  called  the  Georgia,  the 
Sumpter,  the  Naslicille,  the  Tallahassee,  and  the  Chickamauga,  re- 
spectively, the  tribunal  is  unanimously  of  opinion,  that  Great  Brit- 
ain has  not  failed,  by  any  act  or  omission,  to  fulfill  any  of  the 
duties  prescribed  by  the  three  rules  of  Article  VI.,  in  the  Treaty  of 


CHAP,    in.]        THE   "ALABAMA"    CLAIMS    AND    AWARD.  710 

Washington,  or  by  the  principles  of  international  law  not  inconsist- 
ent therewith. 

"  And  so  far  as  relates  to  the  vessels  called  the  Sallie,  the  •Tejfer- 
soii  J)acis,  the  Mask,  the  Boston,  and  the  V.  II.  Joy  respectively, 
the  tribunal  is  unanimously  of  opinion  that  they  ought  to  be  ex- 
cluded from  consideration  for  want  of  evidence. 

''And  whereas,  so  far  as  relates  to  the  particulars  of  the  indenniity 
claimed  by  the  United  States,  the  costs  of  pursuit  of  the  Confederate 
cruisers  are  not,  in  the  judgment  of  the  tribunal,  properly  dis- 
tinguishable from  the  general  expenses  of  the  war  carried  on  by  the 
United  States : 

"The  tribunal  is,  therefore,  of  ophiion,  by  a  majority  of  three  to 
two  voices,  that  there  is  no  ground  for  awarding  to  the  United  States 
any  sum  by  way  of  indemnity  under  this  head. 

"  And,  whereas,  prospective  earnings  cannot  properly  be  made  the  I 
subject  of  compensation,  inasmuch  as  they  depend  in  their  nature  \ 
upon  future  and  nncertain  contingencies  : 

"  The  tribunal  is  unanimously  of  opinion  that  there  is  no 
ground  for  awarding  to  the  United  States  any  sum  by  way  of  in- 
demnity under  this  head. 

"  And,  whereas,  in  order  to  arrive  at  an  equitable  compensation  for 
the  damages  which  have  been  sustained,  it  is  necessary  to  set  aside 
all  double  claims  for  the  same  losses,  and  all  claims  for  '  gros^ 
freights,'  so  far  as  they  exceed  '  net  freights  ' ; 

"  And,  whereas,  it  is  just  and  reasonable  to  allow  interest  at  a 
reasonable  rate ; 

"  And,  whereas,  in  accordance  with  the  spirit  and  letter  of  the 
Treaty  of  Washington,  it  is  preferable  to  adopt  the  form  of  adjudi- 
cation of  a  sum  in  gross,  rather  than  to  refer  the  subject  of  compen- 
sation for  further  discussion  and  deliberation  to  a  board  of  assessors, 
as  provided  by  Article  X.,  of  the  said  treaty  : 

"  The  tribunal,  making  use  of  the  authority  conferred  upon  it  by 
Article  VII.,  of  the  said  treaty,  by  a  majority  of  four  voices  to  one, 
awards  to  the  United  States  a  sum  of  $15,500,000  in  gold,  as  the  in- 
denniity to  be  paid  by  Great  Britain  to  the  United  States,  for  the 
satisfaction  of  all  the  claims  referred  to  the  consideration  of  the 
tribunal,  conformably  to  the  provisions  contained  in  Article  VII.,  of 
the  aforesaid  treaty. 

"And,  in  accordance  with  the  terms  of  Article  XL  of  the  said 
treaty,  the  tribunal  declares  that  '  all  the  claims  referred  to  in  the 
treaty  as  submitted  to  the  tribunal  are  hereby  fully,  perfectly,  and 
finally  settled.' 

"  Furthermore,  it  declares  that  '  each  and  every  one  of  the  said 


720  BELLIGERENTS    AND    NEUTRALS.  [PART  II. 

claims,  whether  the  same  may  or  may  not  have  been  presented  to  the 
notice  of,  or  made,  preferred,  or  laid  before  the  tribunal,  shall  henceforth 
be  considered  and  treated  as  finally  settled,  barred,  and  inadmissible.'" 

In  testimony  whereof  this  present  decision  and  award  has  been  made 
in  duplicate,  and  signed  by  the  arbitrators  who  have  given  their  assent 
thereto,  the  whole  being  in  exact  conformity  with  the  provisions  of 
Article  VII.,  of  the  said  Treaty  of  Washington. 

Made  and  concluded  at  the  Hotel  de  Ville  of  Geneva,  in  Switzerland, 
the  14th  day  of  the  month  of  September,  in  the  year  of  our  Lord  one 
tlionsand  eight  hundred  and  seventy-two.^ 

Charles  Francis  Adams,  Stampflt, 

Frederick  Sclopis,  Vicomte  D'Itajuba. 

1  The  Three  RnJes  of  the  Treat;/  of  Washington  have  been  the  subject  of  widespread 
interest  and  discussion.  Tiie  question  was  immediately  raised,  wlietlier  tliey  formed, 
at  the  time  of  the  American  civil  war,  or  indeed  since  that  time,  a  true  expression  of 
the  accepted  principles  of  International  Law.  The  English  Government,  at  the  time 
of  the  arbitration,  announced  that  it  did  not  accept  them  "  as  a  statement  of  prin- 
ciples of  International  Law  wiiich  were  in  force  at  tlie  time  when  the  claims  arose;  " 
and  the  view  generally  held  in  England  was  that  they  were  tx  post  facto  rules. 

On  the  other  hand,  continental  jurists  are  inclined  to  regard  these  rules  as  a  fair 
statement  of  modern  International  Law  upon  the  subject  to  which  they  apply.  See 
an  article  by  Calvo  in  the  Revue  de  Droit  International,  Vol.  VI  pp.  453-5:j2. 

See  a  careful  study  by  C.  F.  Adams,  The  Treaty  of  Washington  (Lee  at  Appomat- 
tox, 1902,  pp.  31-255) ;  Foster,  Am.  Dip.  357-400,  423-428;  Taylor,  Int.  Law,  §§  614- 
616 ;  1  Moore,  Int.  Arb.  495-682,  4  id.  4057-4178.  The  literature  on  the  subject  is  care- 
fully and  elaborately  considered  in  Moore's  masterly  account.  See  also  the  elaborate 
monographs  by  Montague  Bernard,  Historical  Account  of  the  Neutrality  of  Great 
Britain  during  tlie  American  Civil  War  (1870)  ;  Caleb  Cashing,  The  Treaty  of  Wash- 
ington (1873).     For  the  "  Alabama"  Claims  Courts,  see  5  Moore,  Int.  Arb.  4639-46S5. 

In  considering  this  question,  it  should  be  remembered  that,  by  the  introduction  of 
steam  as  the  motive  power  of  ships,  and  of  iron  and  steel  as  the  material  of  their  con- 
struction, the  conditions  of  maritime  warfare  have  been  very  radically  changed.  What 
might  liave  been  a  reasonable  rule  as  applied  in  the  time  of  sailing  ships  might  now,  in 
the  age  of  swift  ironclads,  be  intolerably  oppressive.  In  tlie  cases  of  tlie  Santissima 
Trinidad,  U.  S.  v.  Qnincy,  and  the  Meteor,  the  courts  were  dealing  with  small  sail- 
ing vessels,  which  had  been  converted  into  privateers,  the  possession  of  which  by  one 
or  the  other  belligerent  made  very  little  difference  in  the  general  result  of  the  struggle; 
whereas,  the  possession  of  an  ironclad  ship  might  very  well  turn  the  scale  one  way  or 
the  other,  as  indeed  it  did  in  the  war  between  Chile  and  Peru,  in  1880-1881.  Tlii8 
great  power  of  inflicting  injury  upon  one  of  the  belligerents,  it  is  fair  to  say,  ought 
not  to  be  permitted  to  neutral  citizens;  and  the  neutral  nation  is  alone  in  a  position  to 
restrain  them. 

In  view  of  these  facts  it  is  believed  that  the  doctrine  set  up  by  the  United  States 
Neutrality  Act  and  by  the  Federal  Courts,  that  .the  "intent"  of  the  owner  or  ship- 
builder  is  the  criterion  by  which  his  guilt  or  innocence  is  to  be  judged,  is  wholly  inad- 
equate; it  would  not  for  a  moment  stand  the  test  of  the  rule  of  "  due  diligence,"  as 
applied  by  the  Geneva  tribunal. 

The  English  B'oreign  Enlistment  Act  of  1870  is  perhaps  the  best  and  fairest  expres- 
sion of  the  modern  rule  anywhere  to  be  found  in  public  laws.  —  Ed. 


CHAP.  III.]  DE   WUTZ   V.    HENDKICKS.  721 


Section  41.  —  Aid  to  Insurgents. 


(a)     Loan  of  Money. 

DE   WUTZ   V.    HENDRICKS. 

Common  Pleas,  1824. 

(9  Moore,  586.) 

This  was  an  action  of  trover  for  certain  papers,  and  which  were 
described  in  the  declaration  to  be  a  power  of  attorney,  and  sundry 
engravings. 

At  the  trial,  before  Lord  Chief  Justice  Best,  at  Guildhall,  at  the 
Sittings  after  the  last  Term,  it  appeared  that  the  plaintiff  had  pro- 
posed to  raise  money  bj-  way  of  loan,  to  espouse  the  cause  of  the 
Greeks  against  the  government  of  the  Porte.  That  he  stated  pub- 
licly that  he  was  authorized  to  do  so,  and,  in  consequence,  applied 
to  the  defendant,  a  stockbroker,  to  negotiate  the  loan,  who  required 
certain  securities  to  be  left  with  him  for  that  purpose ;  that  the 
plaintiff  accordingly  lodged  with  him  a  power  of  attorney,  which,  he 
stated,  was  signed  and  executed  abroad  by  the  Exarch  of  Ravenna, 
authorizing  him,  the  plaintiff,  to  raise  money  for  the  Greek  cause ; 
he  also  requested  the  defendant  to  procure  certain  scrip  receipts  to 
be  engraved,  which  he  accordingly  did,  and  which  were  afterwards 
stamped  at  the  stamp  ofiftce,  as  such  receipts.  The  defendant  suspect- 
ing the  accuracy  of  the  plaintiff's  statement  or  autliority,  the  intended 
loan  failed,  and  no  money  was  raised  by  him.  The  plaintiff  then 
claimed  the  power  of  attorney  and  engraved  scrip  receipts  from  the 
defendant,  which  he  refused  to  deliver  up,  until  the  engraver's  bill 
and  other  expenses  had  been  paid.  On  their  amount  being  tendered, 
the  defendant  claimed  a  commission  for  scrip  on  part  of  the  loan, 
which  the  plaintiff  also  offered  to  pay,  provided  the  defendant  would 
transfer  the  scrip  to  him,  on  which  he  claimed  such  commission; 
but  none  was  in  fact  ever  raised,  as  the  projected  loan  fell  to  the 
ground  in  the  first  instance.  The  plaintiff  having  again  formally 
demanded  the  above  documents  from  the  defendant,  who  refused  to 
deliver  them  up,  he  commenced  the  present  action. 

For  the  defendant,  it  was  submitted,  that  the  whole  of  the  trans- 
action was  a  fraud  on  the  part  of  the  plaintiff,  as  he  had  no  authority 
to  negotiate  the  loan  in  question.    And  his  Lordship  being  of  opinion, 

46 


722  BELTJGERENTS   AND   NEUTRALS.  [PAET  11. 

that  a  resident  in  this  country  could  not  enter  into  an  engagement 
to  raise  money  by  way  of  loan,  to  assist  subjects  of  a  foreign  state, 
so  as  to  enable  them  to  prosecute  a  war  against  a  government  in 
alliance  with  our  own,  without  the  license  of  the  Crown ;  the  Jury 
accordingly  found  a  verdict  for  the  defendant. 

Lord  Chief  Justice  Best. — "  I  am  of  opinion,  that  the  whole  of  the 
transaction  on  which  the  plaintiff  rested  his  claim  to  recover  the 
articles  in  question  fi'om  the  defendant,  was  bottomed  in  fraud ;  the 
Jury  so  found  at  the  trial ;  and  I  am  perfectly  satisfied  with  their 
verdict. 

"  I  then  thought  that  it  was  contrary  to  the  law  of  nations,  for 
persons  residing  in  this  country,  to  enter  into  engagements  to  raise 
money,  by  way  of  loan,  for  the  purpose  of  supporting  subjects  of  a 
foreign  state  in  arms  against  a  government  in  alliance  with  our 
own  ;  and  that  no  right  of  action  could  arise  out  of  such  a  transac- 
tion ;  and  I  consequently  suggested  a  nonsuit ;  but  as  it  was  not 
insisted  on  by  the  defendants'  counsel,  I  allowed  the  cause  to  pro- 
ceed. A  case  in  circumstances  precisely  similar  to  the  present, 
except  that  a  different  loan  was  proposed  to  be  raised,  was  lately 
decided  in  the  Court  of  Chancery  in  which  the  Lord  Chancellor  enter- 
tained the  same  opinion  as  myself,  and  in  which  he  is  stated  to  have 
said,  that  English  Courts  of  Justice  will  not  take  notice  of,  or  afford 
any  assistance  to  persons  who  set  about  raising  loans  for  subjects  of 
the  King  of  Spain,  to  enable  them  to  prosecute  a  war  against  that 
sovereign;  or,  at  all  events  that  such  loans  could  not  be  raised 
without  the  license  of  the  Crown.  I  left  the  question  to  the  Jury  on 
the  merits,  and  they  found  that  the  power  of  attorney  was  an  abro- 
gated fabrication.  It  appeared  on  the  face  of  it  to  have  been  executed 
in  Greece,  it  was  drawn  up  in  the  modern  Greek  language,  and  was 
pretended  to  have  been  sent  from  that  country.  The  plaintiff,  how- 
ever, adduced  no  evidence  to  show  that  it  was  a  genuine  instrument; 
but,  on  the  contrary,  it  was  proved  to  have  been  executed  in  London, 
but  by  whom  did  not  appear.  The  other  articles  sought  to  be  re- 
covered, and  described  in  the  declaration  as  engravings,  were  scrip 
receipts,  which  could  be  of  no  value,  as  the  whole  of  the  transaction 
to  which  they  were  intended  to  be  applied  fell  to  the  ground,  as  it 
was  founded  and  bottomed  in  fraud.  It  was  proved  for  the  defend- 
ant, that  he  was  employed  by  the  plaintiff  to  negotiate  the  loan  in 
question ;  that  many  articles  had  been  written  on  the  subject,  and 
that  placards  had  been  stuck  up  in  the  city,  stating,  that  the  plaintiff 
was  not  authorized  by  the  Greek  government  to  raise  any  money, 
and  that  it  was  altogether  a  fraud. 

"I  told  the  Jury,  that,  with  respect  to  the  j)ower  of  attorney,  the 


CHAP.  III.]  KENNETT   V.    CHAMBERS.  723 

plaintiff  could  not  be  entitled  to  recover,  unless  he  shewed  that  it 
was  a  genuine  instrument,  as  it  was  so  described  in  the  declaration ; 
and  that  to  render  it  valid,  he  should  have  proved  that  it  was  ex- 
ecuted in  Greece ;  but  there  was  no  evidence  whatever  to  shew  that 
fact ; — on  the  contrarj'^,  it  was  proved  to  have  been  concocted  and 
executed  in  IMincing  Lane.  I  also  told  the  Jury,  that  if  the  plaintiff 
was  attempting  a  fraud  on  the  public  by  raising  money  under  a  false 
pretence,  and  that  he  caused  the  papers  in  question  to  be  delivered 
to  the  defendant  in  furtherance  of  such  attempt,  he  could  not  be 
entitled  to  recover  them  back  in  this  action.  The  Jury,  under  these 
circumstances,  were  fully  warranted  in  considering  the  transaction 
as  fraudulent ;  and  I  am  not  only  satisfied  with  their  verdict,  but 
am  decidedly  of  opmion  that  there  is  no  ground  whatever  to  dis- 
turb it. 

"*'  The  rest  of  the  Court  concurring,  Rule  refused."  ^ 


KEXXETT   V.    CHAMBERS. 
ScPREME  Court  of  the  United  States,  1852. 
(14  Howard,  38.) 

Mr.  Chief  Justice  Taney  delivered  the  opinion  of  the  court  :^  — 

This  is  an  appeal  from  the  decree  of  the  Disti-ict  Court  of  the  United 
States  for  the  District  of  Texas. 

The  appellants  filed  a  bill  in  that  court  against  the  appellee,  to 
obtain  the  specific  execution  of  an  agreement  which  is  set  out  in  full 
in  the  bill;  and  which  they  allege  was  executed  at  the  city  of  Cincin- 
nati, in  the  State  of  Ohio,  on  or  about  the  16th  of  September,  1836. 
Some  of  the  complainants  claim  as  original  parties  to  the  contract, 
and  the  others  as  assignees  of  original  parties,  who  have  sold  and 
assigned  to  them  their  interest. 

The  contract,  after  stating  that  it  was  entered  into  on  the  day  and 
year  above  mentioned,  between  General  T.  Jefferson  Chambers,  of  the 
Texan  army,  of  the  first  part,  and  Morgan  Neville  and  six  others, 
who  are  named  in  the  agreement,  of  the  city  of  Cincinnati,  of  the 
second  part,  proceeds  to  recite  the  motives  and  inducements  of  the 
parties  in  the  following  words :  — 

1  For  tlie  case  of  Thompson  v.  Powles,  1828,  2  Sim.  194,  ante,  37.  — Ed. 

2  Tlie  statement  of  the  case  is  omitted.  —  Ed. 


724  BELLIGERENTS   AND   NEUTEALS.  [PAET  II. 

"That  the  said  party  of  the  second  part,  being  desirous  of  assisting 
the  said  General  T.  Jefferson  Chambers,  who  is  now  engaged  in  rais- 
ing, arming,  and  equipping  volunteers  for  Texas,  and  who  is  in  want 
of  means  therefor;  and,  being  extremely  desirous  to  advance  the 
cause  of  freedom  and  the  independence  of  Texas,  have  agreed  to 
purchase  of  the  said  T.  Jefferson  Chambers,  of  his  private  estate, 
the  lands  hereinafter  described." 

And  after  this  recital  follows  the  agreement  of  Chambers,  to  sell 
and  convey  to  them  the  land  described  in  the  agreement,  situated  in 
Texas,  for  the  sum  of  twelve  thousand  five  hundred  dollars,  which 
he  acknowledged  that  he  had  received  in  their  notes,  payable  in 
equal  instalments  of  four,  six,  and  twelve  months,  and  he  covenanted 
that  he  had  a  good  title  to  this  land,  and  would  convey  it  with 
general  warranty.  There  are  other  stipulations,  on  the  part  of 
Chambers,  to  secure  the  title  to  the  parties,  which  it  is  unneces- 
sary to  state,  as  they  are  not  material  to  the  questions  before  the 
court. 

After  setting  out  the  contract  at  large,  the  bill  avers,  that  the  notes 
given,  as  aforesaid,  were  all  paid;  and  sets  forth  the  manner  in  which 
the  complainants,  who  were  not  parties  to  the  original  contract,  had 
acijuired  their  interest  as  assignees;  and  charges  that,  notwithstand- 
ing the  full  payment  of  the  money,  Chambers,  under  different  pre- 
texts, refuses  to  convey  the  laud,  according  to  the  terms  of  his 
agreement. 

It  further  states,  that  they  are  informed  and  believe  that  he  re- 
ceived full  compensation,  in  money,  scrip,  land,  or  other  valuable 
property,  for  the  supplies  furnished  by  him,  and  in  arming  and 
equipping  the  Texan  army  referred  to  in  the  said  contract,  and  which 
it  was  in  part  the  object  of  the  said  parties  of  the  second  part  to 
assist  him  to  do,  by  the  said  advances  made  by  them,  as  before 
stated,  and  which  said  advances  did  enable  the  said  Chambers  so 
to  do. 

To  this  bill  the  respondent  (Chambers)  demurred,  and  the  principal 
question  which  arises  on  the  demurrer  is,  whether  the  contract  was  a 
legal  and  valid  one,  and  such  as  can  be  enforced  by  either  party  in  a 
court  of  the  United  States.  It  appears  on  the  face  of  it,  and  by  the 
averments  of  the  ap[)ellants  in  their  bill,  that  it  was  made  in  Cincin- 
nati, with  a  general  in  the  Texan  army,  who  was  then  engaged  in 
raising,  arming,  and  equipping  volunteers  for  Texas,  to  carry  on  hos- 
tilities with  Mexico;  and  that  one  of  the  inducements  of  the  appel- 
lants, in  entering  into  this  contract  and  advancing  the  money,  was  to 
assist  him  in  accomplishing  these  objects. 

The  District  Court  decided  that  the  contract  was  illegal  and  void, 


CHAP.  III.]  KEXXETT   V.    CHAMBERS.  725 

and  sustained  the  demurrer  and  dismissed  the  bill;  and  we  think  that 
the  decision  was  right. 

The  validity  of  this  contract  depends  upon  the  relation  in  which 
this  country  then  stood  to  Mexico  and  Texas;  and  the  duties  which 
these  relations  imposed  upon  the  government  and  citizens  of  the 
United  States. 

Texas  had  declared  itself  independent  a  few  months  previous  to 
this  agreement.  But  it  had  not  been  acknowledged  by  the  United 
States;  and  the  constituted  authorities  charged  with  our  foreign  re- 
lations regarded  the  treaties  we  had  made  with  Mexico  as  still  in 
full  force,  and  obligatory  upon  both  nations.  By  the  treaty  of  limits, 
Texas  had  been  admitted  by  our  government  to  be  a  part  of  the  Mexi- 
can territory;  and  by  the  first  article  of  the  treaty  of  amity,  com- 
merce, and  navigation,  it  was  declared,  "that  there  should  be  a  firni, 
inviolable,  and  universal  peace,  and  a  true  and  sincere  friendship  be- 
tween the  United  States  of  America  and  the  United  ^lexican  States, 
in  all  the  extent  of  their  possessions  and  territories,  and  between 
their  people  and  citizens  respectively,  without  distinction  of  persons 
or  place."  These  treaties,  while  they  remained  in  force,  were,  by 
the  Constitution  of  the  United  States,  the  supreme  law,  and  binding 
not  only  upon  the  government,  but  upon  every  citizen.  Ko  contract 
could  lawfully  be  made  in  violation  of  their  provisions. 

Undoubtedly,  when  Texas  had  achieved  her  independence,  no  pre- 
vious treaty  could  bind  this  country  to  regard  it  as  a  part  of  the 
Mexican  territory.  But  it  belonged  to  the  government,  and  not  to  I 
individual  citizens,  to  decide  when  that  event  had  taken  place.  And 
that  decision,  according  to  the  laws  of  nations,  depended  upon  the 
question  whether  she  had  or  had  not  a  civil  government  in  successful 
operation,  capable  of  performing  the  duties  and  fulfilling  the  obliga- 
tions of  an  independent  power.  It  depended  upon  the  state  of  the 
fact,  and  not  upon  the  right  which  was  in  contest  between  the  par- 
ties. And  the  President,  in  his  message  to  the  Senate  of  Dec.  22, 
1836,  in  relation  to  the  conflict  between  Mexico  and  Texas,  which  was 
still  pending,  says:  "All  questions  relative  to  the  government  of  for- 
eign nations,  whether  of  the  old  or  the  new  world,  have  been  treated 
by  the  United  States  as  questions  of  fact  only,  and  our  predecessors 
have  cautiously  abstained  from  deciding  upon  them  until  the  clearest 
evidence  was  in  their  possession,  to  enable  them  not  only  to  decide 
correctly,  but  to  shield  their  decision  from  every  unworthy  imputa- 
tion."    Senate  Journal  of  1836,  37,  p.  54. 

Acting  upon  these  principles,  the  independence  of  Texas  was  not 
acknowledged  by  the  government  of  the  United  States  until  the  be- 
ginning of  ]\rarch,  1837.     Up  to  that  time,  it  was  regarded  as  a  part 


726  BELLIGEEENTS   AND   NEUTRALS.  [PART  U. 

of  the  territory  of  Mexico.  The  treaty  which  admitted  it  to  be  so, 
was  held  to  be  still  in  force  and  binding  on  both  parties,  and  every 
effort  made  by  the  government  to  fultil  its  neutral  obligations,  and 
prevent  our  citizens  from  taking  part  in  the  conflict.  This  is  evi- 
dent, from  an  official  communication  from  the  President  to  the  Gov- 
ernor of  Tennessee,  in  reply  to  an  inquiry  in  relation  to  a  requisition 
for  militia,  made  by  General  Gaines.  The  despatch  is  dated  in 
August,  1836;  and  the  President  uses  the  following  language:  "The 
obligations  of  our  treaty  with  Mexico,  as  well  as  the  general  prin- 
ciples which  govern  our  intercourse  with  foreign  powers,  require  us 
to  maintain  a  strict  neutrality  in  the  contest  which  now  agitates  a 
part  of  that  republic.  So  long  as  Mexico  fulfils  her  duties  to  us,  as 
they  are  defined  by  the  treaty,  and  violates  none  of  the  rights  which 
are  secured  by  it  to  our  citizens,  any  act  on  the  part  of  the  govern- 
ment of  the  United  States,  which  would  tend  to  foster  a  spirit  of 
resistance  to  her  government  and  laws,  whatever  may  be  their  char- 
acter or  form,  when  administered  within  her  own  limits  and  jurisdic- 
tion, would  be  unauthorized  and  highly  improper.  Ex.  Doc.  1836, 
1837,  Vol.  1,  Doc.  2,  p.  58. 

And  on  the  very  day  on  which  the  agreement  of  which  we  are 
speaking  was  made  (Sept.  16,  1836),  Mr.  Forsyth,  the  Secretary  of 
State,  iu  a  note  to  the  Mexican  minister,  assured  him  that  the  gov- 
ernment had  taken  measures  to  secure  the  execution  of  the  laws  for 
preserving  the  neutrality  of  the  United  States,  and  that  the  public 
officers  were  vigilant  iu  the  discharge  of  that  duty.  Ex.  Doc.  Vol.  1, 
Doc.  2,  pp.  63-64. 

And  still  later,  the  President,  in  his  message  to  the  Senate  of  Dec. 
22,  1836,  before  referred  to,  says:  "The  acknowledgment  of  a  new 
State  as  independent,  and  entitled  to  a  place  in  the  family  of  nations, 
is  at  all  times  an  act  of  great  delicacy  and  responsibility;  but  more 
especially  so  when  such  a  State  has  forcibly  separated  itself  from 
another,  of  which  it  formed  an  integral  part,  and  which  still  claims 
dominion  over  it."  And,  after  speaking  of  the  policy  which  our  gov- 
ernment had  always  adopted  on  such  occasions,  and  the  duty  of  main- 
taining the  established  character  of  the  United  States  for  fair  and 
impartial  dealing,  he  proceeds  to  express  his  opinion  against  the 
acknowledgment  of  the  independence  of  Texas,  at  that  time,  in  the 
following  words:  — 

"It  is  true,  with  regard  to  Texas,  the  civil  authority  of  Mexico 
has  been  expelled,  its  invading  array  defeated,  the  chief  of  the  re- 
public himself  captured,  and  all  present  power  to  control  the  newly 
organized  government  of  Texas  annihilated  within  its  confines.  Put, 
on  the  other  hand,  there  is,  in  appearance  at  least,  an  immense  dis- 


CHAP.  HI.]  KENNETT   V.  CHAMBERS.  727 

parity  of  physical  force  on  the  side  of  Mexico.  The  Mexican  repub- 
lic, under  another  executive,  is  rallying  its  forces  under  a  new  leader, 
and  menacing  a  fresh  invasion  to  recover  its  lost  dominion.  Upon 
the  issue  of  this  threatened  invasion,  the  independence  of  Texas  may 
be  considered  as  suspended;  and,  were  there  nothing  peculiar  in  the 
relative  situation  of  the  United  States  and  Texas,  our  acknowledg- 
ment of  its  independence  at  such  a  crisis  would  scarcely  be  regarded 
as  consistent  with  that  prudent  reserve  with  which  we  have  hereto- 
fore held  ourselves  bound  to  treat  all  similar  questions." 

The  whole  object  of  this  message  appears  to  have  been  to  impress 
upon  Congress  the  impropriety  of  acknowledging  the  independence 
of  Texas  at  that  time ;  and  the  more  especiall}'  as  the  American  char- 
acter of  her  population,  and  her  known  desire  to  become  a  State  of 
this  Union,  might,  if  prematurely  acknowledged,  bring  suspicion  upon 
the  motives  by  which  we  were  governed. 

We  have  given  these  extracts  from  the  public  documents  not  only 
to  show  that,  in  the  judgment  of  our  government,  Texas  had  not 
established  its  independence  when  tliis  contract  was  made,  but  to 
show  also  how  anxiously  the  constituted  authorities  were  endeavor- 
ing to  maintain  untarnished  the  honor  of  the  country,  and  to  place  it 
above  the  suspicion  of  taking  any  part  in  the  conflict. 

This  being  the  attitude  in  which  the  government  stood,  and  this  its 
open  and  avowed  policy,  upon  what  grounds  can  the  parties  to  such 
a  contract  as  this,  come  into  a  court  of  justice  of  the  United  States 
and  ask  for  its  specific  execution?  Tt  was  made  in  direct  opposition 
to  the  policy  of  the  government,  to  which  it  was  the  duty  of  every 
citizen  to  conform.  And,  while  they  saw  it  exerting  all  its  power  to 
fulfil  in  good  faith  its  neutral  obligations,  they  made  themselves  par- 
ties to  the  war,  by  furnishing  means  to  a  general  of  the  Texan  army, 
for  the  avowed  purpose  of  aiding  and  assisting  him  in  his  military 
operations. 

It  might  indeed  fairly  be  inferred,  from  the  language  of  the  con- 
tract and  the  statements  in  the  appellants'  bill,  that  the  volunteers 
were  to  be  raised,  armed,  and  equipped  within  the  limits  of  the 
United  States.  The  language  of  the  contract  is:  "That  the  said 
party  of  the  second  part  (that  is  the  complainants),  being  desirous  of 
assisting  the  said  General  T.  Jefferson  Chambers,  who  is  now  engaged 
in  raising,  arming,  and  equipping  volunteers  for  Texas,  and  is  in 
want  of  means  therefor."  And  as  General  Chambers  was  then  in  the 
United  States,  and  was,  as  the  contract  states,  actually  engaged  at 
that  time  in  raising,  arming,  and  equipping  volunteers,  and  was  in 
want  of  means  to  accomplish  his  object,  the  inference  would  seem  to 
be  almost  irresistible  that  these  preparations  were  making  at  or  near 


728  BELLIGERENTS   AND    NEUTRALS.  [PART  11. 

the  place  where  the  agreement  was  made,  and  that  the  money  was 
advanced  to  enable  him  to  raise  and  equip  a  military  force  iu  the 
United  States.  And  this  inference  is  the  stronger,  because  no  place 
is  mentioned  where  these  preparations  are  to  be  made,  and  the  agree- 
ment contains  no  engagement  on  his  part,  or  proviso  on  theirs,  which 
prohibited  him  from  using  these  means  and  making  these  military 
preparations  within  the  limits  of  the  United  States. 

If  this  be  the  correct  interpretation  of  the  agreement,  the  contract 
is  not  only  void,  but  the  parties  who  advanced  the  money  were  liable 
to  be  punished  in  a  criminal  prosecution,  for  a  violation  of  the  neu- 
trality laws  of  the  United  States.  And  certainly,  with  such  strong 
indications  of  a  criminal  intent,  and  without  any  averment  in  the  bill 
from  which  their  innocence  can  be  inferred,  a  court  of  chancery  would 
never  lend  its  aid  to  carry  the  agreement  into  specific  execution,  but 
would  leave  the  parties  to  seek  their  remedy  at  law.  And  this 
ground  would  of  itself  be  sufficient  to  justify  the  decree  of  the 
District  Court  dismissing  the  bill. 

But  the  decision  stands  on  broader  and  firmer  ground,  and  this 
agreement  cannot  be  sustained  either  at  law  or  in  equity.  The  ques- 
tion is  not  whether  the  parties  to  this  contract  violated  the  neutrality 
laws  of  the  United  States  or  subjected  themselves  to  a  criminal  prose- 
cution; but  whether  such  a  contract,  made  at  that  time,  withiu  the 
United  States,  for  the  purposes  stated  in  the  contract  and  the  bill  of 
complaint,  was  a  legal  and  valid  contract,  and  such  as  to  entitle 
either  party  to  the  aid  of  the  courts  of  justice  of  the  United  States  to 
enforce  its  execution. 

The  intercourse  of  this  country  with  foreign  nations,  and  its  policy 
in  regard  to  them,  are  placed  by  the  Constitution  of  the  United  States 
in  the  hands  of  the  government,  and  its  decisions  upon  these  subjects 
are  obligatory  upon  every  citizen  of  the  Union.  He  is  bound  to  be  at 
war  with  the  nation  against  which  the  war-making  power  has  declared 
war,  and  equally  bound  to  commit  no  act  of  hostility  against  a  nation 
with  which  the  government  is  in  amity  and  friendship.  This  prin- 
ciple is  universally  acknowledged  by  the  laws  of  nations.  It  lies  at 
the  foundation  of  all  government,  as  there  could  be  no  social  order  or 
peaceful  relations  between  the  citizens  of  different  countries  without 
it.  It  is,  however,  more  emphaticall}'  true  in  relation  to  citizens  of 
the  United  States.  For  as  the  sovereignty  resides  in  the  people, 
every  citizen  is  a  portion  of  it,  and  is  himself  personally  bound  by 
the  laws  which  the  representatives  of  the  sovereignty  may  pass,  or 
the  treaties  into  which  they  may  enter,  within  the  scope  of  their  dele- 
gated authority.  And  when  that  authority  has  plighted  its  faith  to 
another  nation  that  there  shall  be  peace  and  friendship  between  the 


CHAP.  III.]  KENNETT   V.   CHAMBERS.  729 

citizens  of  the  two  countries,  every  citizen  of  the  United  States  is 
equally  and  personally  pledged.  The  compact  is  made  by  the  depart- 
ment of  the  government  upon  which  he  himself  has  agreed  to  confer 
the  power.  It  is  his  own  personal  compact  as  a  portion  of  the  sover- 
eignty in  whose  behalf  it  is  made.  And  he  can  do  no  act,  nor  enter 
into  any  agreement  to  promote  or  encourage  revolt  or  hostilities 
against  the  territories  of  a  country  with  which  our  government  is 
pledged  by  treaty  to  be  at  peace,  without  a  breach  of  his  duty  as  a 
citizen,  and  the  breach  of  the  faith  pledged  to  the  foreign  nation. 
And  if  he  does  so  he  cannot  claim  the  aid  of  a  court  of  justice  to 
enforce  it.  The  appellants  say,  in  their  contract,  tliat  they  were  in- 
duced to  advance  the  money  by  the  desire  to  promote  tlie  cause  of 
freedom.  But  our  own  freedom  cannot  be  preserved  without  obedi- 
ence to  our  own  laws,  nor  social  order  preserved  if  the  judicial  branch 
of  the  government  countenanced  and  sustained  contracts  made  in  vio- 
lation of  the  duties  which  the  law  imposes,  or  in  contravention  of 
the  known  and  established  policy  of  the  political  department,  acting 
within  the  limits  of  its  constitutional  power. 

But  it  has  been  urged  in  the  argument  that  Texas  was  in  fact  inde- 
pendent, and  a  sovereign  state  at  the  time  of  this  agreement;  and 
that  the  citizen  of  a  neutral  nation  may  lawfully  lend  money  to  one 
that  is  engaged  in  war,  to  enable  it  to  carry  on  hostilities  against  its 
enemy. 

It  is  not  necessary,  in  the  case  before  us,  to  decide  how  far  the 
judicial  tribunals  of  the  United  States  would  enforce  a  contract  like 
this,  when  two  states,  acknowledged  to  be  independent,  were  at  war, 
and  this  country  neutral.  It  is  a  sufficient  answer  to  the  argument 
to  say  that  the  question  whether  Texas  had  or  had  not  at  that  time 
become  an  independent  state,  was  a  question  for  that  department  of 
our  government  exclusively  which  is  charged  with  our  foreign  rela- 
tions. And  until  the  period  when  that  department  recognized  it  as 
an  independent  state,  the  judicial  tribunals  of  the  country  were  bound 
to  consider  the  old  order  of  things  as  having  continued,  and  to  regard 
Texas  as  a  part  of  the  Mexcian  territory.  And  if  we  undertook  to 
inquire  whether  she  had  not  in  fact  become  an  independent  sovereign 
state  before  she  was  recognized  as  such  by  the  treaty-making  power, 
we  should  take  upon  ourselves  the  exercise  of  political  authority',  for 
which  a  judicial  tribunal  is  wholly  unfit,  and  which  the  Constitution 
has  conferred  exclusively  upon  another  department. 

This  is  not  a  new  question.  It  came  before  the  court  in  the  case 
of  Rose  V.  Hiinely,  4  Cr.  272,  and  again  in  Iloijt  v.  Gelston,  3  Wheat. 
324.  And  in  both  of  these  cases  the  court  said,  that  it  belongs  ex- 
clusively to  governments  to  recognize  new  states  in  the  revolutions 


730  BELLIGEKENTS   AND   NEUTRALS.  [PART  II. 

which  may  occur  in  tlie  world;  and  until  such  recognition,  either  by- 
cur  own  government  or  the  government  to  which  the  new  state  be- 
longed courts  of  justice  are  bound  to  consider  the  ancient  state  of 
things  as  remaining  unaltered. 

It  was  upon  this  ground  that  the  Court  of  Common  Pleas  in  Eng- 
land, in  the  case  of  De  Wutz  v.  Hendricks,  9  Moore's  C.  B.  Reports, 
586,  decided  that  it  was  contrary  to  the  law  of  nations  for  persons 
residing  in  England  to  enter  into  engagements  to  raise  money  by  way 
of  loan  for  the  purpose  of  supporting  subjects  of  a  foreign  state  in 
arms  against  a  government  in  friendship  with  England,  and  that  no 
right  of  action  attached  upon  any  such  contract.  And  this  decision 
is  quoted  with  approbation  by  Chancellor  Kent,  in  1  Kent's  Com. 
116. 

Nor  can  the  subsequent  acknowledgment  of  the  independence  of 
Texas,  and  her  admission  into  the  Union  as  a  sovereign  State,  affect 
the  question.  The  agreement  being  illegal  and  absolutely  void  at  the 
time  it  was  made,  it  can  derive  no  force  or  validity  from  events  which 
afterwards  happened. 

But  it  is  insisted,  on  the  part  of  the  appellants,  that  this  contract 
was  to  be  executed  in  Texas,  and  was  valid  by  the  laws  of  Texas,  and 
that  the  District  Court  for  that  State,  in  a  controversy  between  indi- 
viduals, was  bound  to  administer  the  laws  of  the  State,  and  ought 
therefore  to  have  enforced  this  agreement. 

This  argument  is  founded  in  part  on  a  mistake  of  the  fact.  The 
contract  was  not  only  made  in  Cincinnati,  but  all  the  stipulations  on 
the  part  of  the  appellants  were  to  be  performed  there  and  not  in 
Texas.  And  the  advance  of  money  which  they  agreed  to  make  for 
military  purposes  was  in  fact  made  and  intended  to  be  made  in  Cin- 
cinnati, by  the  delivery  of  their  promissory  notes,  which  were  ac- 
cepted by  the  appellee  as  payment  of  the  money.  This  appears  on 
the  face  of  the  contract.  And  it  is  this  advance  of  money  for  the 
purposes  mentioned  in  the  agreement,  in  contravention  of  the  neutral 
obligations  and  policy  of  the  United  States,  that  avoids  the  contract. 
The  mere  agreement  to  accept  a  conveyance  of  land  lying  in  Texas, 
for  a  valuable  consideration  paid  by  them,  would  have  been  free  from 
objection. 

But  had  the  fact  been  otherwise,  certainly  no  law  of  Texas  then  or 
now  in  force  could  absolve  a  citizen  of  the  United  States,  while  he 
continued  such,  from  his  duty  to  this  government,  nor  compel  a  court 
of  the  United  States  to  support  a  contract,  no  matter  where  made  or 
where  to  be  executed,  if  that  contract  was  in  violation  of  their  laws, 
or  contravened  the  public  policy  of  the  government,  or  was  in  conflict 
with  subsisting  treaties  with  a  foreign  nation. 


CHAP.  III.]  UNITED   STATES   V.   TRUMBULL.  731 

We  tlierefore  hold  this  contract  to  be  illegal  and  void,  and  affirm 
the  decree  of  the  District  Court. 

Mr.  Justice  Daniel  and  Mr.  Justice  Grier  dissented.^ 


(J})    Ships,  Munitions,  and  other  Siq^pUes. 

UNITED   STATES   v.    TRUMBULL. 

U.  S.  District  Court  for  California,  1891. 

(48  Federal  Reporter,  99.) 

Indictment  of  Trumbull  and  Burt  for  violation  of  neutrality  laws. 

Boss,  J. :  — 

"The  indictment  in  this  case  contains  11  counts,  the  first  4  of 
which,  in  effect,  charge  that  on  the  9th  day  of  May,  1891,  at  a  certain 
designated  place  in  this  judicial  district,  near  the  island  of  San 
Clemente,  the  defendants  unlawfully  attempted  to  fit  out  and  arm, 
fitted  out  and  armed,  procured  to  be  fitted  out  and  armed,  and  were 
knowingly  concerned  in  furnishing,  fitting  out,  and  arming,  a  certain 
steamship  called  the  Itata,  which  was  then  and  there  in  the  posses- 
sion and  under  the  control  of  certain  citizens  of  the  republic  of  Chile, 
known  as  the  '  Congressional  Party,'  and  who  were  then  and  there, 
in  said  republic,  organized  and  banded  together  in  great  numbers  in 
armed  rebellion  and  attempted  revolution,  and  carrying  on  war 
against  the  republic  of  Chile,  and  the  government  thereof,  Vv^itli  which 
the  United  States,  then  and  at  the  time  of  the  finding  of  the  indict- 
ment were  at  peace,  with  intent  that  said  ship  should  be  employed 
in  the  service  of  the  aforesaid  Congressional  Party,  to  cruise  or  com- 
mit hostilities  against  the  then  established  and  recognized  govern- 
ment of  Chile,  with  which  this  government  then  was  at  peace,  con- 
trary to  the  provisions  of  section  5283  of  the  Revised  Statutes  of  the 
United  States,  which  section  is  as  follows : — 

"  '  Every  person  who,  within  the  limits  of  the  United  States,  fits  out  and  arms, 
or  attempts  to  fit  out  and  arm,  or  procures  to  be  fitted  out  and  armed,  or  know- 
ingly is  concerned  in  the  furnishing,  fitting  out,  or  arming  of,  any  vessel,  with 
intent  that  such  vessel  shall  be  employed  in  the  service  of  any  foreign  prince  or 
state,  or  of  any  colony,  district  or  people,  to  cruise  or  commit  hostilities  against 
the  subjects,  citizens,  or  property  of  any  foreign  prince  or  state,  or  of  any  col- 
ony, district,  or  people,  with  whom  the  United  States  are  at  peace,  or  who  issues 
and  delivers  a  commission  within  the  territory  or  jurisdiction  of  the  United 
States,  for  any  vessel,  to  the  intent  that  she  shall  be  so  employed,  shall  be 

1  On  the  subject  of  aid  to  insurgents,  see  1  Halleck,  8i,  note  2.  —  Ed. 


732  .    BELLIGERENTS   A^T)   NEUTRALS.  [PART  IT. 

deemed  guilty  of  a  high  misdemeanor,  and  shall  be  fined  not  more  than  ten 
thousand  dollars,  and  imprisoned  not  more  than  three  years.  And  every  such 
vessel,  her  tackle,  apparel,  and  furniture,  together  with  aU  materials,  arms, 
ammunition,  and  stores,  which  may  have  been  procured  for  the  building  or 
equipment  thereof,  shall  be  forfeited,  one-half  to  the  use  of  the  informer,  and 
the  other  half  to  the  use  of  the  United  States.' 

"  The  next  three  counts  of  the  indictment,  in  effect,  charge  that 
the  defendants,  at  the  same  time  and  place,  increased,  unlawfully 
procured  to  be  increased,  and  were  knowingly  concerned  in  increas- 
ing, the  force  of  a  certain  ship  of  war  and  armed  steamship  called 
Itata.,  which  arrived  at  the  port  of  San  Diego  in  this  judicial  dis- 
trict on  the  2d  day  of  May,  1891,  and  was  at  the  time  of  her  said  ar- 
rival, and  to  and  including  the  9th  day  of  May,  1891  (during  which 
time  she  remained  within  the  jurisdiction  of  the  United  States,  and 
of  this  court),  a  ship  of  war  in  the  service  of  a  certain  foreign  people 
called  the  '  Congressional  Party,'  then  citizens  of  and  residing  in  the 
republic  of  Chile,  and  who  were  then  and  there  banded  together  in 
large  numbers,  in  open-armed  rebellion,  and  attempted  forcible  revo- 
lution, and  making  war  against,  and  being  at  war  witli  a  certain 
foreign  state,  namely,  the  republic  of  Chile,  and  the  lawful  govern- 
ment thereof,  with  which  the  United  States  then,  and  at  the  finding 
of  the  indictment,  were  at  peace,  by  adding  to  the  force  of  said  armed 
vessel  an  equipment  solely  applicable  to  war,  viz.,  by  adding  to  her 
equipment  10,000  rifles,  10,000  bayonets,  and  500,000  cartridges  there- 
for, contrary  to  the  provisions  of  Section  5285  of  the  Revised  Stat- 
utes of  the  United  States,  which  is  as  follows  : — 

"  '  Every  person  who,  within  the  territory  or  jurisdiction  of  the  United  States, 
increases  or  augments,  or  procures  to  be  increased  or  augmented,  or  knowingly  is 
concerned  in  increasing  or  augmenting,  the  force  of  any  ship  of  war.  cruiser,  or 
other  armed  vessel,  which,  at  the  time  of  her  arrival  witliin  the  United  States, 
was  a  ship  of  war,  or  cruiser,  or  armed  vessel,  in  the  service  of  any  foreign 
prince  or  state,  or  of  any  colony,  district,  or  people,  or  belonging  to  the  subjects 
or  citizens  of  any  such  prince  or  state,  colony,  district  or  people,  the  same  being 
at  war  with  any  foreign  prince  or  state,  or  of  any  colony,  district,  or  people, 
with  whom  the  United  States  are  at  peace,  by  adding  to  the  number  of  the  guns 
of  such  vessel,  or  by  changing  those  on  board  of  her  for  guns  of  a  larger  caliber, 
or  by  adding  thereto  any  equipment  solely  applicable  to  war,  shall  be  deemed 
guilty  of  a  high  misdemeanor,  and  shall  be  fined  not  more  than  one  thousand 
dollars,  and  imprisoned  not  more  than  one  year.' 

"  The  last  four  counts  of  the  indictment,  in  effect,  charge  that  the 
defendants,  at  the  same  time  and  place,  began,  set  on  foot,  provided 
the  means  for,  and  prepared  the  means  for,  a  certain  military  expe- 
dition to  be  carried  on  from  thence  against  the  territory  and  domin- 


CHAP.  III.]  rXITED   STATES    V.    TRUMBULL.  733 

ions  of  a  foreign  state,  namely,  tlie  republic  of  Chile, — the  United 
States,  then  and  there,  and  at  the  time  of  the  finding  of  the  indict- 
ment, being  at  peace  with  said  republic, — contrary  to  the  provisions 
of  section  5286  of  the  Kevised  Statutes  of  the  United  States,  which 
is  as  follows : 

"  '  Every  person  who,  within  the  territory  of  the  United  States,  begins  or  sets 
on  foot,  or  provides  or  prepares  the  means  for,  any  militaiy  expedition  or  enter- 
prise, to  be  carried  on  from  thence  against  the  territory  or  dominions  of  any 
foreign  prince  or  state,  or  of  any  colony,  district,  or  jieople,  with  whom  the 
United  States  are  at  peace,  shall  be  deemed  guilty  of  a  high  misdemeanor,  and 
shall  be  fined  not  exceeding  three  thousand  dollars,  and  imprisoned  not  more 
than  three  years.' 

"  The  evidence  introduced  by  the  United  States  in  support  of  the 
indictment  being  concluded,  the  court  is  asked  by  the  defendants  to 
direct  the  jury  to  i-eturn  a  verdict  of  not  guilty,  on  the  ground  that 
the  evidence  introduced  on  the  part  of  the  prosecution  is  insufficient 
to  sustain  any  count  of  the  indictment.  For  the  purposes  of  the 
motion,  every  fact  that  the  evidence  tends  to  establish  must,  of 
course,  be  considered  as  proven. 

"  Briefly  stated,  these  facts  are  as  follows  :  In  January  of  this  year 
the  steamship  Ttata  was  an  ordinary  merchant  vessel.  Early  in  that 
month  she  w^as  captured  in  the  harbor  of  Valparaiso,  Chile,  by  the 
peojjle  designated  in  this  indictment  as  the  '  Congressional  Party,' 
and  who  w^ere  then  engaged  in  an  effort  to  overthrow  the  then  estab- 
lished and  recognized  government  of  Chile,  of  which  Balmaceda  was 
the  head.  The  Itata  was  by  the  Congressional  Party  put  in  com- 
mand of  one  of  its  officers,  and  was  used  in  their  undertaking  as  a 
transport  to  convey  troops,  provisions,  and  munitions  of  war,  and 
also  as  an  hospital  ship,  and  one  in  which  to  confine  prisoners. 
Four  small  cannon  were  also  put  upon  her  decks  and  she  carried  a 
jack  and  pennant.  Some  time  prior  to  the  following  April  the  de- 
fendant Trumbull  came  to  the  United  States  as  an  agent  of  the  Con- 
gressional Party,  and  about  the  month  of  April  went  to  the  city  of 
New  York,  and  there  bought  from  one  of  the  large  mercantile  firms 
of  that  city,  dealing  in  such  matters,  5,000  rifles  and  2,000,000  car- 
tridges therefor,  with  the  intention  and  for  the  purpose  of  sending 
them  to  the  Congressional  Party  in  Chile  for  use  in  their  efforts  to 
overthrow  the  Balmacedan  government.  The  sale  and  purchase  of 
the  arms  and  ammunition  were  made  in  the  usual  course  of  trade. 
Truml)ull  caused  them  to  be  shipped  by  rail  to  San  P'rancisco,  and 
engaged  the  defendant  Burt  to  accompany  them,  wdiich  he  did.  Ar- 
rangements had  been  made  by  Trumbull  with  his  principals  in  Chile, 


734  BELLIGERENTS   AND   NEUTRALS.  [PART  II. 

by  which  they  were  to  send  a  vessel  to  the  United  States  to  get  the 
arms  and  ammunition,  and  convey  them  to  Chile  for  the  use  of  the 
Congressional  Party  there.  The  Itata  was  dispatched  by  that  party 
for  that  purpose,  and  was  accompanied  as  far  as  Cape  San  Lucas  by 
the  Esmeralda,  a  war  ship  then  in  the  service  of  the  Congressional 
Party.  At  one  of  the  Chilean  ports  the  Itata  took  on  board  some 
soldiers,  with  their  arms,  by  one  witness  stated  to  be  about  150,  and 
by  another  to  be  about  12,  in  number. 

"  At  San  Lucas  the  captain  of  the  Esmeralda  took  command  of  the 
Itata,  and  the  captain  of  the  latter  was  left  there  in  command  of  the 
Esmeralda.  The  Itata  then  proceeded  to  San  Diego,  really  in  com- 
mand of  the  EsmerakUC s  captain,  but  ostensibly  in  command  of  an- 
other, who  represented  to  the  customs  officers  at  that  port  that  she 
was  an  ordinary  merchantman,  and  was  bound  to  some  port  on  the 
northern  coast.  Before  coming  into  the  port  of  San  Diego,  or  into 
the  waters  of  the  United  States,  the  Itata  hauled  down  her  jack  and 
pennant,  the  cannon  theretofore  carried  on  her  decks  were  removed 
and  stowed  in  her  hold,  as  were  also  the  arms  of  the  soldiers  she 
carried ;  and  their  uniforms,  as  well  as  those  of  the  officers,  were 
removed,  and  all  appeared  in  civilian's  dress.  At  that  port  she  laid 
in  stores  of  coal  and  provisions,  all  of  which  were  bought  in  the 
open  market,  and  some  of  which  were  marked  '  Esmeralda.' 

"  ]\Ieanwhile  Trumbull  had  chartered  a  schooner,  called  the  Robert 
and  Minnie,  in  San  Francisco  to  take  the  arms  and  ammunition  from 
there  to  a  point  in  this  judicial  district,  then  expected  to  be  near  the 
island  of  Catalina,  where  she  could  meet  the  Itata,  and  deliver  them 
on  board  of  her  to  be  conveyed  to  Chile  for  the  purposes  already 
stated.  The  schooner  Robert  and  Minnie  accordingly  took  on  board 
the  arms  and  ammunition  at  the  port  of  San  Francisco,  and,  in  charge 
of  the  defendant  Burt,  proceeded  to  the  neighborhood  of  Catalina 
Island,  where  she  expected  to  meet  the  Itata.  In  the  meantime  the 
suspicion  of  some  of  the  officers  of  the  United  States  that  the  neu- 
trality laws  were  being  violated  was  aroused,  and  the  marshal  of 
this  district  was  directed  by  the  attorney-general  to  detain  the  Itata, 
if  such  was  found  to  be  the  case;  and,  acting  upon  those  and  certain 
instructions  from  the  district  attorney  of  the  judicial  district,  he 
went  on  board  the  ship  at  San  Diego,  and  put  a  keeper  in  charge  of 
her,  and  then  went  in  search  of  the  Robert  and  Minnie,  which  he  did 
not  find  in  the  waters  of  the  United  States.  Communication  was, 
however,  had  between  the  Itata  and  the  schooner  and  a  point  near 
San  Clemente  Island  was  fixed  upon  as  the  place  of  meeting  for  the 
purpose  of  transferring  the  arms  and  ammunition  from  the  schooner 
to  the  ship.     Accordingly,  the  Itata,  on  the  6th  of  May,  1891,  with- 


CHAP.  HI.]  UNITED    STATES    V.   TRUMBULL.  735 

out  obtaining  clearance  papers,  and  against  the  protest  of  the  person 
left  on  board  and  in  charge  of  her  by  the  marshal,  weighed  anchor, 
and  steamed  out  of  the  harbor  of  San  Diego,  with  him  on  board,  to 
meet  the  Robert  and  Minnie^  and  receive  the  arms  and  ammunition. 
The  marshal's  keeper  was,  however,  put  ashore  at  Point  Ballast, 
before  leaving  the  harbor.  While  steaming  out  of  it,  one  or  more  of 
the  liauCs  cannon  were  brought  on  deck,  and  some  of  the  soldiers 
on  board  of  her  appeared  in  uniform.  On  the  9th  of  May,  the  Itata 
and  Robert  and3Rnnie  came  together  about  a  mile  and  a  half  south- 
erly of  San  Clemente  Island,  and  there  the  arms  and  ammunition  in 
question  were  taken  from  the  schooner,  and  put  on  board  the  ship 
in  original  packages,  and  the  latter  at  once  left  with  them  for  Chile. 

"No  evidence  was  mtroduced  tending  to  show  that  the  Congres- 
sional Party  ever  received  any  recognition  of  any  character  from  the 
government  of  the  United  States  until  September  4th,  when  it  was 
recognized  as  the  established  and  only  government  of  Chile. 

"  But  since  the  argument  and  submission  of  the  motion,  the  counsel 
for  the  United  States  have  called  the  attention  of  the  court  to  the 
following  facts  furnished  by  the  respective  departments,  to- wit :  On 
March  4th,  the  secretary  of  the  navy  cabled  Admiral  McCann  '  to 
proceed  to  Valparaiso,  and  observe  strict  neutrality,  and  take  no 
part  in  troubles  between  parties  further  than  to  protect  American 
interests.'  On  March  26th,  the  secretary  of  the  navy  cabled  Admiral 
Brown,  who  had  superseded  Admiral  McCann,  'to  abstain  from  pro- 
ceedings in  nature  of  assistance  to  either,  that  is,  the  Balmaceda  or 
Congressional  Party ;  that  the  ships  of  the  latter  were  not  to  be 
treated  as  piratical,  so  long  as  they  waged  war  only  against  the  Bal- 
maceda government.'  On  April  25th,  Secretary  of  State  Blaine 
cabled  the  American  minister,  '  You  can  act  as  mediator  with  Bra- 
zilian minister  and  French  charge  *Taffa%res?  On  May  5th,  Minister 
Eagan  cabled  this  government,  '  Government  of  Chile  and  revolu- 
tionists have  accepted  mediation  of  the  United  States,  Brazil,  and 
France  most  cordially ;  those  of  England  and  Germany  declined.' 
On  May  7th,  Acting  Secretary  of  State  Wharton  acknowledged  the 
dispatch  of  Minister  Eagan,  and  '  expressed  hope  that  through  com- 
bined efforts  of  the  governments  in  question,  the  strife  Avhich  has 
been  going  on  in  Chile  may  be  speedily  and  happily  terminated.'  On 
May  14th  Acting  Secretary  of  State  Wharton  cabled  Minister  Eagan 
that  '  F'rench  minister  reports  threats  to  shoot  the  insurgent  envoys 
by  Balmaceda,'  and  directed  that  they  should  have  ordinary  treat- 
ment under  flag  of  truce. 

"  The  foregoing  are  the  facts  of  the  case  as  now  presented;  and  the 
question  the  court  is  called  upon  to  decide  is  whether  they  are  suffi- 


736  BELLIGERENTS   AND   NEUTRALS.  [PART  II. 

cient  to  justify  a  verdict  against  tlie  defendants  upon  any  count  of 
the  indictment.  The  counsel  for  tlie  United  States  concede  that  they 
are  insufficient  to  justify  a  verdict  against  the  defendants  under 
either  of  the  counts  that  are  based  on  section  5285  of  the  Revised 
Statutes.  It  seems  to  me  the  same  thing  is  equally  true  in  respect 
to  those  counts  that  are  based  on  section  5286.  The  very  terms  of 
that  statute  imply  that  the  military  expeditions  or  enterprises  there- 
by prohibited  are  such  as  originate  within  the  limits  of  the  United 
States,  and  are  to  be  carried  on  from  this  country.  '  Every  person 
who,  within  the  lunits  or  jurisdiction  of  the  United  States,  begins  or 
sets  on  foot,  or  provides  or  prepares  the  means  for,  any  military  ex- 
pedition or  enterprises,  to  be  carried  on  from  thence,' — that  is  to  say, 
from  the  United  States, — is  the  language  of  the  statute. 

"If  the  evidence  shows  that  in  this  case  there  ever  was  any  mili- 
tary expedition  begun  or  set  on  foot,  or  provided  or  prepared  for, 
wdthin  the  sense  of  this  statute,  it  was  begun,  set  on  foot,  provided 
and  prepared  for  in  Chile,  and  was  to  be  carried  on  from  Chile,  and 
not  from  the  United  States.  But  I  think  it  perfectly  clear  that  the 
sending  of  a  ship  from  Chile  to  the  United  States,  to  take  on  board 
arms  and  ammunition  purchased  in  this  country,  and  carry  them 
back  to  Chile,  is  not  the  beginning,  setting  on  foot,  providing  or  pre- 
paring the  means  for  any  military  expedition  or  enterprise,  within 
the  meaning  of  section  5286  of  the  Revised  Statutes. 

"The  cases  of  The  Mary  A.  Hogan,  18  Fed.  Rep.,  529;  r.  S.  v. 
Two  Hundred  and  Fourteen  Boxes  of  Arms,  etc.,  20  Fed.  Rep.,  50 ; 
and  C\  ^S.  v.  Band,  17  Fed.  Rep.,  142,  cited  by  counsel  for  the  United 
States  in  support  of  their  position  in  respect  to  this  point,  do  not  at 
all  support  it.  In  each  of  those  cases  there  was  a  military  expedi- 
tion, and  it  was  organized  within,  started  from,  and  was  to  be  car- 
ried on  from  the  United  States.  The  facts  of  those  cases  are  wholly 
different  from  the  facts  of  the  present  case. 

"  There  remains  for  consideration  the  four  counts  of  the  indict- 
ment that  are  based  on  section  5283  of  the  Revised  Statutes.  The 
first  of  these,  as  has  been  seen,  charges  that  the  defendants,  on  the 
9th  of  ]May  last,  at  a  certain  designated  place  within  this  judicial 
district,  unlawfully  fitted  out  and  armed  a  certain  steamship  called 
the  Bata,  which  was  then  and  there  in  the  possession  and  under  the 
control  of  certain  citizens  of  the  republic  of  Chile,  known  as  the 
'  Congressional  Party,'  and  who  were  then  and  there,  in  said  repub- 
lic, organized  and  banded  together  in  great  numbers  in  armed  rebel- 
lion and  attempted  revolution,  and  carrying  on  war  against  the 
republic  of  Chile  and  the  government  thereof,  with  which  the  United 
States  then,  and  at  the  time  of  the  finding  of  the  indictment,  ^^'ere  at 


CHAP.  III.]  U^^ITED    STATES    V.   TRUMBULL.  737 

peace,  with  intent  that  said  ship  should  be  employed  in  the  service 
of  the  aforesaid  Congressional  Party,  to  cruise  or  commit  hostilities 
against  the  then  established  and  recognized  government  of  Chile, 
with  which  this  government  then  was  at  peace.  The  second  count 
charges  that  the  defendants,  at  the  same  time  and  place,  attempted 
to  do  the  same  thing;  the  third  count  charges  that,  at  the  same  time 
and  place,  they  unlawfully  procured  the  same  thing  to  be  done ;  and 
the  fourth,  that,  at  the  same  time  and  place,  defendants  were  '  un- 
lawfully and  knowingly  concerned  in  the  furnishing,  fitting  out, 
and  arming  of  the  Itata,  with  intent,  etc. 

"  It  is  contended  on  behalf  of  the  defendants  that  section  5283  has 
no  application  to  this  case,  for  the  reason  that  the  people  designated  , 
in  the  indictment  as  the  '  Congressional  Party '  do  not  constitute  a 
people,  within  the  meaning  of  that  section.  It  is  beyond  question 
that  the  status  of  the  jDeople  composing  the  Congressional  Party  at 
the  time  of  the  commission  of  the  alleged  offense,  is  to  be  regarded 
by  the  court  as  it  was  then  regarded  by  the  political  or  executive 
department  of  the  United  States.  This  doctrine  is  firmly  estab- 
lished. Gehton  v.  Iloyt,  3  Wheat.,  246,  324;  IT.  8.  v.  Palmer,  Id., 
610,  635  ;  Kennett  v.  C/iambers,  14  How.,  38  ;  Whart.  Int.  Law  Dig., 
pp.  551,  552,  and  cases  there  cited. 

"  If  the  dispatches  from  the  secretary  of  the  navy,  the  secretary  of 
state,  and  acting  secretary  of  state,  already  referred  to,  are  to  be 
considered  as  indicating  the  light  in  which  the  people  composing  the 
Congressional  Party  of  Chile  were  regarded  by  the  executive  depart- 
ment of  this  government  prior  to  their  recognition,  on  the  4th  of 
September,  the  position  of  the  United  States  towards  them  seems  to 
have  been  similar  to  that  taken  by  the  United  States  towards  the 
insurgents  against  Hayti  in  1869.  That  position  was  thus  stated  by 
Mr.  Fish,  then  secretary  of  state,  in  a  letter  dated  September  14, 
1869:— 

" '  (1)  That  we  do  not  dispute  the  right  of  the  government  of 
Hayti  to  treat  the  officers  and  crew  of  the  Quaher  City  and  Florida 
(vessels  in  the  service  of  the  insurgents  against  Hayti)  as  pirates 
for  all  intents  and  purposes.  How  they  are  to  be  regarded  by  their 
own  legitimate  government  is  a  question  of  municipal  law,  into 
which  we  have  no  occasion,  if  we  had  the  right,  to  enter. 

"'(2)  That  this  government  is  not  aware  of  any  reason  which 
would  require  or  justify  it  in  looking  upon  the  vessel  named  in  a 
different  light  from  any  other  vessel  employed  in  the  service  of  the 
insurgents. 

"  '  (3)  That,  regarding  them  simply  as  armed  cruisers  of  the  in- 
surgents, not  yet  acknowledged  by  this  government  to  have  obtained 

47 


738  BELLIGERENTS    AND   NEUTRALS.  [PART  TL 

belligerent  rights,  it  is  competent  to  the  United  States  to  deny  and 
resist  the  exercises  by  those  vessels,  or  any  other  agents  of  the 
rebellion,  of  the  privileges  which  attend  maritime  war,  in  respect  to 
our  citizens  or  their  property  entitled  to  their  protection.  We  may 
or  may  not,  at  option,  as  justice  or  policy  may  require,  treat  them  as 
pirates  in  the  absolute  and  unqualified  sense,  or  we  may,  as  the  cir- 
cumstances of  any  actual  case  shall  suggest,  waive  the  extreme 
right,  and  recognize,  where  facts  warrant  it,  an  actual  intent,  on  the 
part  of  the  individual  offenders,  not  to  depredate  in  a  criminal  sense 
and  for  private  gain,  but  to  capture  and  destroy  jure  belli.  It  is 
sufiQcient  for  the  present  purpose,  that  the  United  States  will  not 
admit  any  commission  or  authority  proceeding  from  rebels  as  a  jus- 
tification or  excuse  for  injury  to  persons  or  property  entitled  to  the 
protection  of  this  government.  They  will  not  tolerate  the  search  or 
stopping,  by  cruisers  in  the  rebel  service,  of  vessels  of  the  United 
States,  nor  any  other  act  which  is  only  privileged  by  recognized  bel- 
ligerency. 

"  '  (4)  While  asserting  the  right  to  capture  and  destroy  the  ves- 
sels in  question,  and  others  of  similar  character,  if  any  aggression 
upon  persons  or  property  entitled  to  the  protection  of  this  govern- 
ment shall  recommend  such  action,  we  cannot  admit  the  existence 
of  any  obligation  to  do  so  in  the  interest  of  Hayti  or  of  the  general 
security  of  commerce.'     3  Whart.  Int.  Law  Dig.,  pp.  465,  466. 

"  Does  section  5283  of  the  Revised  Statutes  apply  to  any  people 
whom  it  is  oi^tional  with  the  United  States  to  treat  as  pirates  ?  That 
section  is  found  in  the  chapter  headed  '  Neutrality,'  and  it  was  car- 
ried into  the  Revised  Statutes,  and  was  oiiginally  enacted  in  fur- 
therance of  the  obligations  of  the  nation  as  a  neutral.  The  very 
idea  of  neutrality  imports  that  the  neutral  will  treat  each  contend- 
ing party  alike;  that  it  will  accord  no  right  or  privilege  to  one  that 
it  withholds  from  the  other,  and  will  withhold  none  from  one  that  it 
accords  to  the  other.  In  the  case  of  U.  S.  v.  Qifinci/,  6  Pet.,  445,  the 
Supreme  Court  of  the  United  States  said  that  the  word  'people'  in 
the  3d  section  of  the  act  of  April  20,  1818  (and  from  that  carried 
into  the  Revised  Statutes  as  section  5283),  '  is  one  of  the  denomina- 
tions applied  by  the  act  of  Congress  to  a  foreign  power.'  This  can 
hardly  mean  an  association  of  people  in  no  Avay  recognized  by  the 
United  States,  or  by  the  government  against  which  they  are  rebel- 
ling, whose  rebellion  has  not  attained  the  dignity  of  war,  and  who 
may,  at  the  option  of  the  United  States,  be  treated  by  them  as 
pirates.  Prior  to  the  passage  of  the  act  of  April  20,  1818,  the 
Supreme  Court  of  the  United  States,  in  the  case  of  Gelston  v.  Hoyt., 
3  Wheat.,  246,  speaking  through  Mr.  Justice  Stoky,  held  that  sec- 


CHAP.  III.]  UNITP:D   states   v.   TRUMBULL.  730 

tion  3  of  the  act  of  1794,  prohibiting  the  fitting  out  any  sliip,  etc., 
for  tlie  service  of  any  foreign  prince  or  state,  to  cruise  against  the 
subjects,  etc.,  of  any  foreign  prince  or  state,  with  wliicli  the  United 
States  were  at  peace,  did  not  apply  to  any  new  government,  unless 
it  had  been  recognized  by  the  United  States  or  l)y  the  government 
of  the  country  to  which  such  new  country  belonged;  and  that  a  plea 
which  set  up  a  forfeiture  under  that  act,  in  fitting  out  a  ship  to 
cruise  against  such  new  state,  must  aver  such  recognition,  or  it 
is  bad. 

"  Congress,  in  passing  the  subsequent  act  of  April  20,  1818,  by 
which  the  provision  referred  to  of  the  act  of  1794  was,  in  substance,  re- 
enacted,  must  be  presumed  to  have  known  the  construction  that  had 
been  theretofore  put  by  tlie  Supreme  Court  upon  the  words  '  prince  or 
state '  in  the  act  of  1794,  and  with  that  knowledge,  in  passing  the 
act  of  1818,  inserted  in  the  same  clause  the  words  'colony,  district, 
or  people,' 

"  This  was  done,  according  to  Dana's  "Wheat.  Int.  Law,  §  439,  note 
215,  and  Wharton's  Int.  Law  Dig.,  p.  561,  upon  the  suggestion  of  the 
Spanish  minister  that  the  South  American  provinces,  then  in  revolt, 
and  not  recognized  as  independent,  might  not  be  included  in  the 
word  '  state.'  But  in  every  one  of  those  instances  the  ITnited  States 
had  acknowledged  the  existence  of  a  state  of  war,  and,  as  a  conse- 
quence, the  belligerent  rights  of  the  provinces.  The  Ambrose  Liglit^ 
25  Fed.  Rep.,  414,  and  references  there  made. 

"  It  will  be  observed  that  the  Supreme  Court,  in  the  case  of  Gels- 
ton  V.  Ilorjt  did  not  say  that  the  independence  of  the  new  govern- 
ment must  have  been  recognized  by  the  L'nited  States  to  make  the 
statute  of  which  it  was  speaking  applicable.  There  are  different 
kinds  or  degrees  of  recognition,  but  can  it  be  properly  said  that,  in 
passing  an  act  in  furtherance  of  the  obligations  of  the  nation  as  a 
neutral.  Congress  was  legislating  with  reference  to  a  people  not  in 
any  way  recognized  by  the  government  of  the  Ignited  States,  and 
whom  it  might,  at  its  option,  treat  as  pirates  ?  '  To  fall  within  the 
statute,'  said  Judge  Brown,  in  the  case  of  The  Carondelet,  37  Fed. 
Rep.,  800,  '  the  vessel  must  be  intended  to  be  employed  in  the  service 
of  one  foreign  prince,  state,  colony,  district,  or  people,  to  cruise  or 
commit  hostilities  against  the  subjects,  citizens,  or  property  of  an- 
other, with  whom  the  Laiited  States  are  at  peace.  The  United  States 
can  hardly  be  said  to  be  at  peace,  in  the  sense  of  the  statute,  with  a 
faction  which  they  are  unwilling  to  recognize  as  a  government ;  nor 
could  the  cruising  or  committing  of  hostilities  against  such  a  mere 
faction  well  be  said  to  be  committing  hostilities  against  the  '  sub- 
jects, citizens,  or  property  of  a  district  or  people,  within  the  meaning 


740  BELLIGERENTS    AND    NEUTRALS.  [PART  11. 

of  the  statute.  So  on  the  other  hand,  a  vessel,  in  entering  the  serv- 
ice of  the  opposite  faction  of  Hippolyte,  could  hardly  he  said  to 
enter  the  service  of  a  foreign  '  prince  or  state,  or  of  a  colony,  district 
or  people,'  unless  our  government  had  recognized  Hippolyte's  faction 
as  at  least  constituting  a  belligerent,  which  it  does  not  appear  to 
have  done.'  Attorney-General  Hoar,  hoAvever,  in  a  letter  to  Mr. 
Fish,  secretary  of  state,  of  date  December  16,  1869  (13  Op.  Atty. 
Gen.  U.  S.,  177),  said : — 

" '  Undoubtedly  the  ordinary  application  of  the  statute  [in  ques- 
tion] is  to  cases  where  the  United  States  intends  to  maintain  its 
neutrality  in  wars  between  two  other  nations,  or  where  both  parties 
to  a  contest  have  been  recognized  as  belligerents  ;  that  is,  as  having 
a  sufficiently  organized  political  existence  to  enable  them  to  carry  on 
war.  But  the  statute  is  not  confined  in  its  terms,  nor,  as  it  seems  to 
me,  in  its  scope  and  proper  effect,  to  such  cases.     Under  it,  any  per- 

(sons  Avho  are  insurgents,  or  engaged  in  -what  would  be  regarded 
under  our  law  as  levying  war  against  the  sovereign  power  of  the 
,  nation,  though  few  in  number  and  occupying  however  small  a 
territory,  might  f)rocure  the  fitting  out  and  arming  of  A^essels  with 
intent  to  commit  hostilities  against  a  nation  with  which  we  were  at 
peace,  and  with  intent  that  they  should  be  employed  in  the  service 
of  a  colony,  district,  or  jjeople,  not  waging  a  recognized  war.' 

"  The  attention  of  Attorney-General  Hoar  does  not  appear  to  have 
been  attracted  to  the  decisions  of  the  Supreme  Court  and  other  cases 
above  cited,  nor  are  any  authorities  cited  in  support  of  the  views 
t  expressed  by  him.  In  my  opinion,  it  is,  to  say  the  least,  extremely 
'  doubtful  whether  section  5283  of  the  Revised  Statutes  applies  to  the 
present  case.  But,  assuming  that  it  does,  the  evidence  does  not  sus- 
tain the  charges  based  upon  it.  It  does  not  show,  or  tend  to  shoAA', 
that  the  defendants,  or  either  of  them,  attempted  to  do,  or  procured 
to  be  done,  or  were  concerned  in  doing,  anything  that  they  did  not 
in  fact  do. 

"  What  the  evidence  shows  that  they  did  do  has  already  been 
stated.  If  none  of  those  acts  constituted  the  arming,  fitting  out,  or 
furnishing  the  Itata  Avith  the  intent  that  she  should  be  employed  to 
cruise  or  commit  hostilities  against  the  then  established  government 
of  Chile,  it  necessarily  follows  that  the  prosecution  has  failed  to 
prove  the  case  alleged  against  the  defendants,  and  the  motion  made 
on  their  behalf  should  be  granted.  One  of  the  counsel  for  the  United 
States  conceded,  on  the  argument,  that  the  evidence  is  insufficient  to 
show  that  the  defendants  fitted  out  and  armed  the  Itata,  but  he  con- 
tended strenuously  that  it  is  sufficient  to  show  that  they  Avere  know- 
ingly concerned  hi  'furnishing'  her.     Of  course,  if  he  is  right  hi  the 


CHAP.  Iir.]  UNITED    STATES    V.    TRUMBULL.  741 

concession,  it  results  that  the  first  count  is  not  established  by  proof ; 
and,  since  the  evidence  does  not  tend  to  show  that  the  defendants, 
or  either  of  them,  attempted  to  do,  or  procured  to  be  done,  anything 
they  did  not  in  fact  do,  the  second  and  third  counts  would  also  fall. 
If,  as  is  thus  conceded,  and  as  seems  to  me  to  be  clear,  the  putting 
on  board  the  Jtata  of  the  arms  and  ammunition,  under  the  circum-ij. 
stances  and  for  the  purposes  stated,  did  not  constitute  the  fitting  out  I 
and  arming  of  that  vessel,  it  is  difficult  to  understand  how  the  samel 
acts,  committed  under  the  same  circumstances  and  for  the  same  pur- 1 
poses,  constituted  the  'furnishing'  of  her.     There  is  nothing  in  the 
evidence  tending  to  show  that  any  of  the  arms  or  ammunition  were 
intended  for  use  by  the  Itata.    On  the  contrary,  the  whole  case 
shows  that  the  defendants  caused  them  to  be  put  on  board  of  her 
with  the  intention  that  she  should  transport  them  to  Chile,  for  the 
use  of  the  insurrecting  party  there. 

"  This  does  not  constitute  the  fitting  out,  arming,  or  furnishing  of 
the  Itata^  with  intent  that  she  should  be  employed  to  cruise  or  com- 
mit hostilities  in  the  service  of  the  insurrectionary  party  against  the 
then  government  of  Chile.  In  principle,  the  case  is,  I  think,  much 
like  that  of  The  Florida,  decided  by  Judge  Blatchford  in  1871,  and 
reported  in  4  Ben.,  452.  This  was  a  suit  against  the  Florida  for  an 
alleged  forfeiture  incurred  under  the  third  section  of  the  act  of  April 
20,  1818,  now,  in  substance,  section  5283  of  the  Revised  Statutes. 

"  The  court  said : — 

"  'Admitting  that  persons  acting  as  agents  of  the  insurrectionary 
party  in  Cuba  were  the  real  owners  of  the  vessel  and  her  cargo  of 
arms  and  munitions  of  war,  and  that  the  transaction  of  the  borrow- 
ing, by  Darr  from  Castillo,  of  the  money  wherewith  the  vessel  and 
her  cargo  were  purchased,  was  a  sham,  and  that  the  vessel  was  to 
proceed  with  her  cargo  to  Vera  Cruz,  and  there  vessel  and  cargo 
M'ere  to  be  transferred  by  Darr,  their  nominal  owner,  to  persons  act- 
ing for  the  insurrectionary  party  in  Cuba,  and  that  thence  the  vessel 
was  to  take  the  cargo  to  some  point  off  the  coast  of  Cuba,  and  land 
it  on  the  shore  by  the  use  of  rafts  made  out  of  the  lumber  on  board, 
towed  by  the  steam-launch  on  board,  through  shallow  water,  to  the 
shore,  and  that  Darr  and  such  real  owners  of  the  vessel  and  cargo 
had  an  intent  to  do  all  this  in  fitting  out  the  vessel,  and  putting  her 
cargo  on  board,  still  a  violation  of  the  third  section  of  the  act  1818 
is  not  thereby  made  out.  A  vessel  fitted  out  with  mtent  to 
do  this,  is  not  fitted  out  with  intent  to  cruise  or  commit  hos- 
tilities,  within  the  sense  of  that  section.  If  so,  then  every  vessel 
fitted  out  to  run  a  blockade,  with  a  cargo  of  munitions  of  war, 
is  necessarily  fitted  out,  within  the  sense  of  that  section,  to  commit 


742  BELLIGERENTS    AND    NEUTRALS.  [PART  TI. 

hostilities  against  the  country  whose  forces  have  instituted  the 
blockade.  *  *  *  There  is  no  satisfactory  evidence  that  the  vessel 
was  furnished  or  fitted  out  or  armed,  or  attempted  to  be  furnished 
or  fitted  out  or  armed,  with  intent  that  she  should  be  employed 
to  cruise  or  commit  hostilities,  in  the  sense  of  the  third  section 
of  the  act,  in  the  service  of  the  insurrectionary  party  in  Cuba, 
against  the  government  of  Spain.  There  is  no  evidence  that  she  was 
intended  to  do  anything  more  than  transport  her  cargo  to  the  coast 
of  Cuba,  and  cause  it  to  be  landed  there  on  rafts,  by  the  aid  of  the 
launch  on  board.  To  do  this  was  no  violation  of  the  third  section  of 
the  act,  which  is  the  one  on  which  the  libel  is  founded.' 

"  In  a  letter  from  Attorney-General  Speed  to  Mr.  Seward,  then 
secretary  of  state,  he  said : — 

" '  I  know  of  no  law  or  regulation  which  forbids  any  person  or 
government,  whether  the  political  designation  be  real  or  assumed, 
from  purchasing  arms  from  the  citizens  of  the  United  States,  and 
shipping  them  at  the  risk  of  the  purchaser.'  11  Op.  Atty.-Gen. 
U.  S.,  452. 

"  The  fact  that  secrecy  and  deception  were  resorted  to  in  the  pres- 
ent case,  as  was  also  done  in  the  case  of  the  Florida^  cannot  bring  it 
within  the  purview  of  the  statute,  if  not  otherwise  within  it ;  nor 
can  the  circumstance  that  the  Itata^  in  leaving  the  port  of  San  Diego 
in  the  manner  disclosed  by  the  evidence,  violated  other  provisions  of 
law.  The  case  alleged  must,  of  course,  be  proved ;  otherwise  the 
defendants  are  entitled  to  a  verdict  of  not  guilty. 

"  Entertaining  the  views  above  expressed,  it  becomes  unnecessary 
to  decide  what  effect,  if  any,  should  otherwise  be  given  in  this  case 
to  the  recognition  by  the  United  States,  on  the  4th  of  September,  of 
the  government  established  by  the  Congressional  Party,  or  to  deter- 
mine other  questions  raised,  all  of  which  have  been  elaborately  and 
very  ably  argued  by  counsel. 

"  The  evidence  introduced  on  behalf  of  the  prosecution  being,  in 
my  opinion,  insufficient  to  warrant  a  conviction  under  either  count 
of  the  indictments,  the  motion  made  on  behalf  of  the  defendants  is 
granted,  and  the  jury  are  instructed  to  find  a  verdict  of  not  guilt3\"  * 

1  Affirmed  by  tlie  Circuit  Court  of  Appeals,  May  8,  1893,  56  Fed.  505.  — Ed. 


CHAP.  III.]  THE   "SALVADOR."  743 


THE  "SALVADOR." 
PiuvY  Council,  1870. 
(3  Privy  Council  Rep.  218.) 

The  Proclamation  of  the  '24th  of  March,  1869,  stated  that  an  in- 
surrection against  the  Government  of  Spain  Avas  reported  to  have 
taken  phxce,  and  to  be  then  existing  in  the  Island  of  Cuba,  and  upon 
the  fact  of  that  report  being  well-founded,  and  a  state  of  insurrec- 
tion actually  existing  in  Cuba,  the  Proclamation  against  Her  Maj- 
esty's subjects  in  the  Bahamas  enlisting  or  engaging  in  a  Foreign 
service  in  aid  of  such  insurrection  was  legally  and  properly  issued. 

All  the  witnesses  show,  and  the  learned  Judge  of  the  Vice- Ad- 
miralty Court  below  himself  admits,  that  there  was  a  very  serious 
insurrection  or  revolt  in  the  Island  of  Cuba  against  the  Spanish 
Government.  But  the  learned  Judge,  though  apparently  satisfied 
that  there  was  a  state  of  insurrection  in  Cuba,  hesitates  to  apply 
the  penal  section  of  the  "  Foreign  Enlistment  Act,  because  he  cannot 
find  that  such  insurrection  is  in  favor  of  any  persons  assuming  the 
powers  of  Government,  or  pretended  Government,  in  the  Island  of 
Cuba ;  though  the  nature  and  object  of  the  expedition  for  wiiich  the 
Salvador  was  equipped  and  fltted-out  is  from  the  evidence  proved 
to  have  been  in  aid  of  this  insurrection,  and  she,  being  a  British 
vessel,  w^as  engaged  in  and  for  a  military  expedition,  for  the  purpose 
of  attacking  the  dominions  of  a  friendly  Power,  yet  the  Judge  of  the 
Vice-Admiralty  Court  refused  to  declare  the  vessel  liable  to  for- 
feiture witliin  the  meaning  of  the  7th  section  of  the  Act. 

Their  Lordships'  judgment  was  delivered  by  Lord  Cairns: — 

"  This  is  an  appeal  from  the  decision  of  the  Vice- Admiralty  Court 
of  the  Bahamas,  upon  an  information  filed  on  behalf  of  the  Crown 
before  that  Court  under  the  Foreign  Enlistment  Act,  with  regard 
to  the  ship  Salvador,  and  seeking  her  confiscation. 

"The  section  in  the  Foreign  Enlistment  Act  which  has  to  be 
considered  is  the  seventh.  It  has  frequently  been  remarked,  that 
the  interpretation  of  that  section  is  attended  with  some  difficulty, 
mainly  owing  to  the  great  quantity  of  words  which  are  used  in  the 
clause  ;  but  endeavoring  for  the  moment  to  set  aside  the  verbiage  of 
the  section,  it  is  obvious  that,  hi  order  to  constitute  an  offence  under 
it,  five  propositions  must  be  established.  In  the  first  place,  the  ship, 
which  in  other  respects  is  found  to  be  acting  within  the  meaning  of 


744  BELLIGERENTS    AND    NEUTRALS.  [PART  II. 

the  section,  must  be  acting  without  the  leave  and  license  of  the 
Sovereign  of  this  Country.  That  is  tlie  first  element  of  the  charge 
under  the  section.  The  second  is  this,  the  ship  must  be  equipped, 
furnished,  fitted-out  or  armed,  or  there  must  be  a  procuring,  or  an 
attempt  or  endeavor  to  equip,  furnish,  fit-out,  or  arm  the  ship.  The 
third  is,  that  the  equipping,  furnishing,  fitting-out,  or  arming  of  the 
ship  must  be  done  with  the  intent  or  in  order  that  the  ship  or  vessel 
shall  be  employed  in  the  service  of  some  '  foreign  Prince,  State,  or 
Potentate,  or  some  foreign  colony,  province,  or  part  of  any  province 
or  people,  or  of  any  person  or  persons  exercising,  or  assuming  to  ex- 
ercise, any  powers  of  government  in  or  over  any  foreign  State,  colony, 
province,  or  part  of  any  province  or  people.' 

"  Then  the  fourth  element  in  the  section  is  this,  there  must  be  an 
intent  to  employ  the  ship  in  one  of  two  capacities  either  '  as  a  trans- 
port or  storeship,  against  any  Prince,  State,  or  Potentate,'  or  '  with 
intent  to  cruise  or  commit  hostilities  against  any  Prince,  State,  or 
Potentate.'  I  pause  for  the  purpose  of  observing  that  the  words  are 
not  very  happily  chosen  which  represent  her  as  being  employed  '  as 
a  transport  or  storeship  against  any  Prince,  State,  or  Potentate ; '  but 
it  is  clear,  open  as  the  words  may  be  to  criticism,  that  the  intent  is, 
that  the  ship  should  be  employed  in  one  of  the  two  capacities  I  have 
mentioned,  and  not  only  so,  but  employed  '  against,'  that  is  in  the 
way  of  aggression  against,  some  foreign  Prince,  Potentate,  or  State. 
This  should  be  done,  as  I  have  already  said,  against  some  Prince, 
State,  or  Potentate,  *or  against  the  subjects  or  citizens  of  any  Prince, 
State,  or  Potentate,  or  against  the  persons  exercising  or  assuming  to 
exercise  the  powers  of  government  in  any  colony,  province,  or  part 
of  any  province  or  country,  or  against  the  inhabitants  of  any  foreign 
colony,  province,  or  part  of  any  province  or  country.'  And  the  fifth 
element  is,  that  this  foreign  State  or  Potentate,  and  so  on,  should  be 
one  with  whom  the  Sovereign  of  this  country  should  not  then  be 
at  war. 

"Those  are  the  five  elements  which  go  to  make  up  the  whole 
charge  under  the  7th  section. 

"  IsTow,  with  regard  to  the  first  which  I  have  mentioned,  the  ab- 
sence of  leave  and  licence  on  the  part  of  Her  Majesty,  no  question 
arises. 

"  With  regard  to  the  second,  namely,  that  there  must  be  an  equip- 
ping, furnishing,  fitting-up,  or  arming,  or  a  procuring,  or  an  attempt 
to  do  so,  no  question  can  arise  in  this  case  when  we  read  the  evidence 
of  Mr.  Dumaresq,  the  Receiver- General  and  Treasurer  of  the  Island, 
who  states  the  condition  in  which  he  found  the  ship,  and  the  prep- 
arations made  on  board  of  her,  which  seem  to  their  Lordships  to 


CETAP.  III.]  THE    "  SALVADOIl."  745 

amount  to  a  fitting-out  or  arming,  or  an  attempt  to  do  so,  within  the 
meaning  of  tliis  section.  The  learned  Judge  of  the  Vice-Admiralty 
Court  seems  to  have  entertained  no  doubt  himself  upon  this  part  of 
the  case. 

"  I  pass  over  the  third  element  which  I  mentioned,  for  the  moment, 
in  order  to  say  that  upon  the  fourth  and  fifth  heads  to  which  I  have 
referred  there  can  also  be  no  doubt  entertained,  as  it  seems  to  their 
Lordships ;  and  here,  again,  no  doubt  was  entertained  by  the  learned 
Judge  of  the  Court  below.  It  is  quite  clear,  that  the  ship  was  in- 
tended to  be  used  as  a  transport  or  storeship  against  a  Prince,  State, 
or  Potentate  with  whom  Her  Majesty  was  not  at  war.  She  was  to 
be  used  obviously  as  a  transport  or  storeship  for  the  purpose  of  con- 
veying to  Cuba  men  and  materials  ;  and  in  that  way  to  do  tlie  duty 
of  a  transport  ship,  and  so  to  inflict  injury  upon  the  Spanish  govern- 
ment, who,  at  that  time  were,  and  are  now,  the  lawful  authority 
having  the  dominion  over  Cuba.  Here,  again,  no  doubt  was  enter- 
tained by  the  learned  Judge  in  the  Court  below,  and  no  doubt  could 
be  entertained  by  any  one  who  looks  at  the  evidence  of  ]\Ir.  Uuma- 
resq,  to  whom  I  have  already  adverted,  and  also  the  evidence  of  Mr. 
Butler,  the  collector  of  revenue,  both  of  whom  state  what  the  report 
was  which  was  made  to  themselves  by  Carlin,  the  master  of  this 
vessel,  as  to  her  conduct  when  she  went  to  the  coast  of  Cuba — how 
she  landed  all  the  men  she  had  on  board,  plainly  for  the  purpose  of 
taking  part  in  the  insurrection  which  was  going  on  in  Cuba — how 
they  abandoned  the  ship  when  they  saw  a  Spanish  ship  of  war  in 
sight — how  they  were  prepared  to  set  fire  to  their  ship  if  the  Spanish 
ship  approached  them — and  how  afterwards,  Avhen  they  found  that 
they  were  unnoticed,  they  took  possession  of  the  Salvador  again,  and 
brought  her  back  to  Nassau. 

"  That  leaves  uncovered  only  the  third  element  of  charge  in  this 
section,  and  it  is  upon  that  alone  that  the  learned  Judge  of  the  Vice- 
Admiralty  Court  entertained  any  doubt. 

"  The  third  element  is,  that  the  ship  must  be  employed  in  this 
way  in  the  service  of  some  '  foreign  Prince,  State,  or  Potentate,  or  of 
any  foreign  colony,  province,  or  part  of  any  province  or  people,  or  of 
any  person  or  persons  exercising  or  assuming  to  exercise  any  powers 
of  Government  in  or  over  any  foreign  State,  colony,  province,  or  part 
of  any  province  or  people.'  It  is  to  be  observed  that  this  part  of  the  \ 
section  is  in  the  alternative.  The  ship  may  be  employed  in  the 
service  of  a  foreign  Prince,  State,  or  Potentate,  or  foreign  State, 
colony,  province,  or  part  of  any  province  or  people  ;  that  is  to  say,  if 
you  find  any  consolidated  body  in  the  foreign  State,  whether  it  be 
the  Potentate,  who  has  the  absolute  dominion,  or  the  Government, 


746  BELLIGERENTS    AND    NEtJTRALS.  [PART  IL 

or  a  part  of  the  province  or  of  the  people,  or  the  whole  of  the  prov- 
ince or  the  people  acting  for  themselves,  that  is  sufficient. 

"  But  by  way  of  alternative,  it  is  suggested  that  there  may  be  a 
case  where,  although  you  cannot  say  that  the  province,  or  the  people, 
or  a  part  of  the  province  or  people  are  employing  the  ship,  there  yet 
may  be  some  person  or  persons  who  may  be  exercising,  or  assuming 
to  exercise,  powers  of  Government  in  the  foreign  colony  or  State, 
drawing  the  whole  of  the  material  for  the  hostile  proceedings  from 
abroad ;  and,  therefore,  by  way  of  alternative,  it  is  stated  to  be  suffi- 
cient, if  you  find  the  ship  prepared  or  acting  in  the  service  of  '  any 
person  or  persons  exercising,  or  assuming  to  exercise,  any  powers  of 
Government  in  or  over  any  foreign  State,  colony,  province,  or  part  of 
any  province  or  people ; '  but  that  alternative  need  not  be  resorted 
to,  if  you  find  the  ship  is  fitted-out  and  armed  for  the  purpose  of 
being  '  employed  in  the  service  of  any  foreign  State  or  people,  or  part 
of  any  province  or  people.' 

"  Upon  that  the  observation  of  the  learned  Judge  was  this  : — '  We 
have  no  evidence  of  the  object  of  the  insurrection,  who  are  the  leaders, 
what  portion  of  Cuba  they  have  possession  of,  in  what  manner  this 
insurrection  is  controlled  or  supported,  or  in  what  manner  they 
govern  themselves.  How,  therefore,  can  I  say  that  they  are  assum- 
ing the  powers  of  Government  in  or  over  any  part  of  the  Island  of 
Cuba?' 

"  Now,  it  appears  to  their  Lordships,  that  the  error  into  which  the 
learned  Judge  below  fell,  was  in  confining  his  attention  to  what  I 
have  termed  the  second  alternative  of  this  part  of  the  section,  and 
in  disregarding  the  first  part  of  the  alternative.  It  may  be  (it  is  not 
necessary  to  decide  whether  it  is  so  or  not)  that  you  could  not  state 
who  were  the  person  or  persons,  or  that  there  were  any  person  or 
persons  exercising,  or  assuming  to  exercise,  powers  of  Government 
in  Cuba,  in  opposition  to  the  Spanish  authorities. 

"  That  may  be  so :  their  Lordships  express  no  opinion  upon  that 
subject,  but  they  will  assume  that  there  might  be  a  difficulty  in 
bringing  the  case  within  that  second  alternative  of  the  section  ;  but 
their  Lordships  are  clearly  of  opinion,  that  there  is  no  difficulty  in 
bringing  the  case  under  the  first  alternative  of  the  section,  because 
their  Lordships  find  these  propositions  established  beyond  all  doubt, 
— there  was  an  insurrection  in  the  Island  of  Cuba ;  there  were  in- 
surgents who  had  formed  themselves  into  a  body  of  people  acting 
together,  undertaking  and  conducting  hostilities ;  these  insurgents, 
beyond  all  doubt,  formed  part  of  the  province  or  people  of  Cuba ; 
and  beyond  all  doubt  the  ship  in  question  was  to  be  employed,  and 
was  employed,  in  connection  with  and  in  the  service  of  this  body  of 
insurgents. 


CHAP.  III.]  THE   "  SALVADOR."  T47 

"  Those  propositions  being  established,  as  their  Lordships  think 
they  clearly  are  established,  both  by  the  evidence  of  Dumaresq  and 
Butler,  to  which  I  have  already  referred,  and  further,  by  tlie  evidence 
of  the  tliree  witnesses,  Loinaz,  Wells,  and  Mama,  their  Lordships 
think  that  the  requisitions  of  the  seventh  section  in  this  respect  are 
entirely  fulfilled,  and  that  the  case  is  made  out  under  this  head,  as 
it  is  upon  all  other  heads  of  the  section. 

"Their  Lordships,  therefore,  will  humbly  recommend  to  Her 
Majesty  that  the  decision  of  the  Vice-Admiralty  Court  should  be 
reversed,  and  that  judo-ment  should  be  pronounced  for  the  Crown, 
according  to  the  prayer  of  the  information. 

"  It  has  been  intimated  to  their  Lordships,  that  on  the  7th  of 
February  last,  there  was  a  decree  by  their  Lordships  for  the  appraise- 
ment and  sale  of  the  vessel.  She  has  been  sold,  and  the  net  pro- 
ceeds, £163,  4s.  Scl,  paid  into  Her  Majesty's  Commissariat  Chest  in 
the  Bahamas.  The  Colonial  Government,  it  appears,  have  incurred 
expenses  to  the  amount  of  £145,  5s.  10c?.  in  keeping  the  vessel  while 
she  was  under  arrest,  and  they  claim  to  be  reimbursed  those  expenses 
out  of  the  proceeds  of  the  sale.  That,  of  course,  wall  be  proper,  and 
if  it  is  necessary  to  make  that  part  of  this  Order,  it  will  be  done."^ 

1  During  the  Franco-Prussian  war,  the  government  of  the  United  States  pioceeded 
to  sell  a  qiiantitj'  of  arms  and  munitions  which  it  had  accumulated  during  the  civil 
war,  but  with  no  intention  that  these  articles  siiould  go  into  the  hands  of  either  bel- 
ligerent. The  committee  reported  that  the  sale  was  lawful  and  proper,  and  would  ■ 
have  been  so,  if  the  sale  had  been  made  directly  to  one  of  the  belligerents.  See  the  I 
Senate  Report,  42d  Cong.,  2d  sess  ,  Rep.  183.  And  see  House  Report,  46,  4-2d  Cong., 
2d  sess. 

Perels,  Int.  Seerecht,  251,  says  that  the  Government  of  tlie  United  States  sold  in 
0  :tober,  1870,  at  public  auction,  500,000  muskets,  163  carbines,  35,000  revolvers, 
40,000  sabres,  20,000  horse-trappings,  and  50  batteries  with  ammunition  ;  and  that  tiie 
export  from  New  York  to  Trance  from  September  to  the  middle  of  December  of  that 
year  included  378,000  muskets,  45,000,000  patronen,  55  cannon,  and  2,000  pistols. 
3  Wharton's  Digest,  p.  513. 

It  is  to  be  hoped  that  the  report  of  the  Senate  committee  does  not  express  tlie  j 
settled  law  of  the  United  States  upon  this  .subject.  It  confounds  the  rights  and  duties 
of  a  neutral  state  with  those  of  the  private  citizens  of  a  neutral  state,  which  is  a  very 
different  matter.  Such  a  transaction,  however  innocent  the  intention,  can  hardly  fail 
to  raise  tlie  suspicion  of  bad  faith  on  the  part  of  neutral  government.  For  it  is  un- 
doubtedly true  that  a  war  between  foreign  states  provides  just  the  opportunity  for 
the  sale  of  such  articles  to  the  best  advantage.  —  Ed. 


748  BELLIGERENTS    AND    NEUTRALS.  [PART  II. 

THE   ''THREE  FRIENDS." 

Supreme  Court  of  the  United  States,  1896. 

(166  United  States,  1.) 

The  steamer  Three  Friends  was  seized  November  7,  1896,  by  the 
collector  of  customs  for  the  district  of  St.  John's,  Florida,  as  forfeited 
to  the  United  States  under  section  5283  of  the  Revised  Statutes,  and 
thereupon,  November  12,  was  libelled  on  behalf  of  the  United  States 
in  the  District  Court  for  the  Southern  District  of  Florida. 

Mr.  Chief  Justice  Fuller  delivered  the  opinion  of  the  court. ^ 

We  agree  with  the  district  judge  that  the  contention  that  forfeiture 
under  section  5283  depends  upon  the  conviction  of  a  person  or  persons 
for  doing  the  acts  denounced  is  untenable.  The  suit  is  a  civil  suit  in 
rem  for  the  condemnation  of  the  vessel  only,  and  is  not  a  criminal 
prosecution.  The  two  proceedings  are  wholly  independent  and  pur- 
sued in  different  courts,  and  the  result  in  each  might  be  different. 
Indeed,  forfeiture  might  be  decreed  if  the  proof  showed  the  prohibited 
acts  were  committed  though  lacking  as  to  the  identity  of  the  particular 
person  by  whom  they  were  committed.  The  Palmi/ra,  12  Wheat.  1, 
14;  The  Ambrose  Light,  25  Fed.  Rep.  408;  The  Meteor,  17  Fed.  Cas. 
178. 

The  Palmyra  was  a  case  of  a  libel  of  information  against  the  vessel 
to  forfeit  her  for  a  piratical  aggression,  under  certain  acts  of  Congress 
which  made  no  provision  for  the  personal  punishment  of  the  offenders, 
but  it  was  held  that,  even  if  such  provision  had  been  made,  conviction 
would  not  have  been  necessary  to  the  enforcement  of  forfeiture.  And 
IVIr.  Justice  Story,  delivering  the  opinion,  said:  "It  is  well  known, 
that  at  the  common  law,  in  many  cases  of  felonies,  the  party  forfeited 
his  goods  and  chattels  to  the  Crown.  The  forfeiture  did  not,  strictly 
speaking,  attach  in  rem  ;  but  it  was  a  part,  or  at  least  a  consequence, 
of  the  judgment  of  conviction.  It  is  plain  from  this  statement,  that 
no  right  to  the  goods  and  chattels  of  the  felon  could  be  acquired  by  the 
Crown  by  the  mere  commission  of  the  offence  ;  but  the  right  attached 
only  by  the  conviction  of  the  offender.  The  necessary  result  was,  that 
in  every  case  where  the  Crown  sought  to  recover  such  goods  and  chat- 
tels, it  was  indispensable  to  establish  its  right  by  producing  the  record 
of  the  judgment  of  conviction.  In  the  contemplation  of  the  common 
law,  the  offender's  right  was  not  divested   until   the  conviction.     But 

^  Part  of  the  opinion  dealing  witli  questions  of  procedure  has  been  omitted.  —  Ed. 


CHAP.  III.]  THE    "three   FRIENDS."  749 

this  doctrine  never  was  applied  to  seizures  and  forfeitures,  created  by 
statute,  i)i  rem,  cognizable  on  the  revenue  side  of  the  Exchequer. 
The  thing  is  here  primarily  considered  as  the  offender,  or  rather  the 
offence  is  attached  primarily  to  the  thing  ;  and  this  whether  the  offence 
be  vialum  pi'ohlhitvm  or  malum  in  se.  The  same  principle  applies  to 
proceedings  in  rem,  on  seizures  in  the  Admiralty.  Many  cases  exist, 
where  the  forfeiture  for  acts  done  attaches  solely  in  rem,  and  there  is 
no  accompanying  penalty  in  personam.  INIany  cases  exist  where  there 
is  both  a  forfeiture  in  rem,  and  a  personal  penalty.  But  in  neither 
class  of  cases  has  it  ever  been  decided  that  the  prosecutions  were 
dependent  upon  each  other.  But  the  practice  has  been  and  so  this 
court  understands  the  law  to  be,  that  the  proceeding  in  rem  stands 
independent  of,  and  wholly  unaffected  by,  any  criminal  proceeding  in 
personam, ^^  And  see  The  Maleh  Adhel,  2  How.  210;  United  States  v. 
The  Little  Charles,  1  Brock.  347. 

The  libel  alleged  that  the  vessel  was  "furnished,  fitted  out,  and 
armed,  with  intent  that  she  should  be  employed  in  the  service  of  a 
certain  people,  to  wit_.  certain  people  then  engaged  in  armed  resistance 
to  the  government  of  the  King  of  Spain,  in  the  island  of  Cuba,  to  cruise 
and  commit  hostilities  against  the  subjects,  citizens,  and  property  of 
the  King  of  Spain,  in  the  island  of  Cuba,  with  whom  the  United  States 
are  and  were  at  that  date  at  peace." 

The  learned  district  judge  held  that  this  Avas  insufficient  under  sec- 
tion 5233,  because  it  was  not  alleged  "that  said  vessel  had  been  fitted 
out  with  intent  that  she  be  employed  in  the  service  of  a  foreign  prince 
or  state,  or  of  any  colony,  district,  or  people  recognized  as  such  by  the 
political  power  of  the  United  States." 

In  Wihorg  v.  United  States,  163  U.  S.  G32,  which  was  an  indictment 
under  section  5286,  we  referred  to  the  eleven  sections  from  5281  to 
5291,  inclusive,  which  constitute  Title  LXVII.  of  the  Kevised  Statutes, 
and  said  :  "  The  statute  was  undoubtedly  designed  in  general  to  secure 
neutrality  in  wars  between  two  other  nations,  or  between  contending 
parties  recognized  as  belligerents,  but  its  operation  is  not  necessarily 
dependent  on  the  existence  of  such  state  of  belligerency,"  and  the  con- 
sideration of  the  present  case  arising  under  section  5283  confirms  us  in 
the  view  thus  expressed. 

It  is  true  that  in  giving  a  resume  of  the  sections,  w^e  referred  to  sec- 
tion 5283  as  dealing  "  with  fitting  out  and  arming  vessels  in  this 
country  in  favor  of  one  foreign  power  as  against  another  foreign  power 
with  which  we  are  at  peace,"  but  that  was  matter  of  general  descrip- 
tion, and  the  entire  scope  of  the  section  Avas  not  required  to  be 
indicated. 

The  title  is  headed  "Neutrality,"  and  usually  called,  by  way  of  con- 


750  BELLIGERENTS    AND   NEUTRALS.  [pART   IL 

venience,  the  "  Neutrality  Act,"  as  the  term  "  Foreign  Enlistment  Act " 
is  applied  to  the  analogous  British  statute,  but  this  does  not  operate 
as  a  restriction. 

Neutrality,  strictly  speaking,  consists  in  abstinence  from  any  partic- 
ipation in  a  public,  private  or  civil  war,  and  in  impartiality  of  conduct 
toward  both  parties,  but  the  maintenance  unbroken  of  peaceful  relations 
between  two  powers,  when  the  domestic  peace  of  one  of  them  is  dis- 
turbed, is  not  neutrality  in  the  sense  in  which  the  word  is  used  when 
the  disturbance  has  acquired  such  head  as  to  have  demanded  the 
recognition  of  belligerency.  And,  as  mere  matter  of  municipal  ad- 
ministration, no  nation  can  permit  unauthorized  acts  of  war  within  its 
territory  in  infraction  of  its  sovereignty,  while  good  faith  towards 
friendly  nations  requires  their  prevention. 

Hence,  as  Mr.  Attorney-General  Hoar  pointed  out,  13  Opinions,  177, 
178,  though  the  principal  object  of  the  act  was  "  to  secure  the  perform- 
ance of  the  duty  of  the  United  States,  under  the  law  of  nations,  as  a 
neutral  nation  in  respect  of  foreign  powers,"  the  act  is  nevertheless  an 
act  "to  punish  certain  offences  against  the  United  States  by  fines, 
imprisonment,  and  forfeitures,  and  the  act  itself  defines  the  precise 
nature  of  those  offences." 

These  sections  were  brought  forward  from  the  act  of  April  20, 1818, 
3  Stat.  447,  c.  88,  entitled,  "An  act  in  addition  to  the  'Act  for  the 
punishment  of  certain  crimes  against  the  United  States,'  and  to  repeal 
the  acts  tlierein  mentioned,"  which  was  derived  from  the  act  of  June 
o,  1794,  1  Stat.  381,  c.  50,  entitled,  "  An  act  in  addition  to  the  '  Act  for 
the  punishment  of  certain  crimes  against  the  United  States,"  "  and  the 
act  of  March  3,  1817,  3  Stat.  370,  c.  58,  entitled,  "An  act  more  effectu- 
ally to  preserve  the  neutral  relations  of  the  United  States." 

Tlie  piracy  act  of  March  3,  1819,  3  Stat.  510,  c,  77,  Rev.  Stat. 
§§  4293,  4294,  4295,  4296, 5368,  supplemented  the  acts  of  1817  and  1818. 

The  act  of  1794,  which  has  been  generally  recognized  as  the  first 
instance  of  municipal  legislation  in  support  of  the  obligations  of  neu- 
trality, and  a  remarkable  advance  in  the  development  of  international 
law,  Avas  recommended  to  Congress  by  President  Washington  in  his 
annual  address  on  December  3,  1793;  was  drawn  by  Hamilton,  and 
passed  the  Senate  by  the  casting  vote  of  Vice-President  Adams.  Ann. 
3d  Cong.  11,  67.  Its  enactment  grew  out  of  the  proceedings  of  the 
then  French  minister,  which  called  forth  President  Washington's  proc- 
lamation of  neutrality  in  the  spring  of  1793.  And  though  the  law  of 
nations  had  been  declared  by  Chief  Justice  Jay,  in  his  charge  to  the 
grand  jury  at  Richmond,  May  22,  1793  (Wharton's  State  Trials,  49, 
56),  and  by  Mr.  Justice  Wilson,  Mr.  Justice  Iredell  and  Judge  Peters, 
on  the  trial  of  Henfield  in  July  of  that  year  (Id.  G6,  84),  to  be  capable 


CHAP.  III.]  THE    "THREE    FRIENDS."  751 

of  being  enforced  in  the  courts  of  the  United  States  criminally,  as  well 
as  civilly,  without  further  legislation,  yet  it  was  deemed  advisable  to 
pass  the  act  in  view  of  controversy  over  that  posijtion,  and,  moreover, 
in  order  to  provide  a  comprehensive  code  in  prevention  of  acts  hj  indi- 
viduals within  our  jurisdiction  inconsistent  with  our  own  authority,  as 
well  as  hostile  to  friendly  powers. 

Section  5283  of  the  Revised  Statutes  is  as  follows:  ^  — 
By  referring  to  section  three  of  the  act  of  June  o,  179-4,  section  one 
of  the  act  of  1817,  and  section  three  of  the  act  of  1818,  it  will  be  seen 
that  the  words  "  or  of  any  colony,  district,  or  people  "  were  inserted  in 
the  original  law  by  the  act  of  1817,  carried  forward  by  the  act  of  1818, 
and  so  into  section  5283. 

The  immediate  occasion  of  the  passage  of  the  act  of  ^March  3,  1817, 
appears  to  have  been  a  communication,  under  date  of  December  20, 
1816,  from  the  Portuguese  minister  to  Mr.  Monroe,  then  Secretary  of 
State,  informing  him  of  the  fitting  out  of  privateers  at  Baltimore  to 
act  against  Portugal,  in  case  it  should  turn  out  that  that  government 
was  at  war  with  the  "self-styled  government  of  Buenos  Ayres,"  and 
soliciting  "  the  proposition  to  Congress  of  such  provisions  of  law  as 
will  prevent  such  attempts  for  the  future."  On  December  26,  1816, 
President  Madison  sent  a  special  message  to  Congress,  in  which  he 
referred  to  the  inefficacy  of  existing  laws  "to  prevent  violations  of  the 
obligations  of  the  United  States  as  a  nation  at  peace  towards  bellig- 
erent parties  and  other  unlawful  acts  on  the  high  seas  by  armed 
vessels  equipped  within  the  waters  of  the  United  States,"'  and,  "  with 
a  view  to  maintain  more  effectually  the  respect  due  to  the  laws,  to  the 
character,  and  to  the  neutral  and  pacific  relations  of  the  United  States," 
recommended  further  legislative  provisions.  This  message  was  trans- 
mitted to  the  minister  December  27,  and  he  was  promptly  officially 
informed  of  the  passage  of  the  act  in  the  succeeding  month  of  March. 
Geneva  Arbitration,  Case  of  the  United  States,  138.  In  ISIr.  Dana's 
elaborate  note  to  §  439  of  his  edition  of  Wheaton,  it  is  said  that  the 
words  "colony,  district,  or  people  "  were  inserted  on  the  suggestion  of 
the  Spanish  minister  that  the  South  American  provinces  in  revolt  and 
not  recognized  as  independent  might  not  be  included  in  the  word 
"state."  Under  the  circumstances  this  act  was  entitled  as  "to  pre- 
serve the  neutral  relations  of  the  United  States,"  while  the  title  of  the 
act  of  1794  described  it  as  "  in  addition  "  to  the  Crimes  Act  of  April 
30,  1790,  1  Stat.  112,  c.  9,  and  the  act  of  1818  was  entitled  in  the  same 
way.  But  there  is  nothing  in  all  this  to  indicate  that  the  words 
"colony,  district,  or  people  "  had  reference  solely  to  communities  whose 
belligerency  had  been  recognized,    and  the  history  of  the  times,  an 

1   U.  S.  V.  Trumbull,  ante,  p.  731.  —  Ed. 


752  BELLIGERENTS   AND   NEUTRALS.  [PART  H. 

interesting  review  of  which  has  been  furnished  us  by  the  industry  of 
counsel,  does  not  sustain  the  view  that  insurgent  districts  or  bodies, 
unrecognized  as  belligerents,  were  not  intended  to  be  embraced.  On 
the  contrary,  the  reasonable  conclusion  is  that  the  insertion  of  the 
words  "  district  or  people  "  should  be  attributed  to  the  intention  to 
include  such  bodies,  as,  for  instance,  the  so-called  Oriental  Republic  of 
Artigas,  and  the  governments  of  Petion  and  Christophe,  whose  atti- 
tude had  been  passed  on  by  the  courts  of  jSTew  York  more  than  a  year 
before  in  Gelston  v.  Hoijt,  13  Johns.  141,  5G1,  which  was  then  pending 
in  this  court  on  writ  of  error.  There  was  no  reason  why  they  should 
not  have  been  included,  and  it  is  to  the  extended  enumeration  as  cover- 
ing revolutionary  bodies  laying  claim  to  riglits  of  sovereignty,  whether 
recognized  or  unrecognized,  that  Chief  Justice  Marshall  manifestly 
referred  in  saying,  in  The  Gran  Para,  T  Wheat.  471,  489,  that  the  act 
of  1817  "  adapts  the  previous  laws  to  the  actual  situation  of  the  world." 
At  all  events,  Congress  imposed  no  limitation  on  the  words  "  colony, 
district,  or  people,"  by  requiring-  political  recognition. 

Of  course  a  political  community  whose  independence  has  been  recog- 
nized is  a  "  state  "  under  the  act ;  and,  if  a  body  embarked  in  a  revolu- 
tionary political  movement,  whose  independence  has  not  been,  but 
whose  belligerency  has  been,  recognized,  is  also  embraced  by  that  term, 
then  the  words  "  colony,  district,  or  people,"  instead  of  being  limited 
to  a  political  community  which  has  been  recognized  as  a  belligerent, 
must  necessarily  be  held  applicable  to  a  body  of  insurgents  associated 
together  in  a  common  political  enterprise  and  carrying  on  hostilities 
against  the  parent  country,  in  the  effort  to  achieve  independence, 
although  recognition  of  belligerency  has  not  been  accorded. 

And  as  agreeably  to  the  principles  of  international  law  and  the 
reason  of  the  thing,  the  recognition  of  belligerency,  while  not  confer- 
ring all  the  rights  of  an  independent  state,  concedes  to  the  government 
recognized  the  rights,  and  imposes  upon  it  the  obligations,  of  an  inde- 
pendent state  in  matters  relating  to  the  war  being  waged,  no  adequate 
ground  is  perceived  for  holding  that  acts  in  aid  of  such  a  government 
are  not  in  aid  of  a  state  in  the  sense  of  the  statute. 

Contemporaneous  decisions  are  not  to  the  contrary,  though  they 
throw  no  special  light  upon  the  precise  question. 

Gelston  v.  Hoijt,  3  Wheat.  246,  decided  at  February  term,  1818  (and 
below  January  and  February,  1816),  was  an  action  of  trespass  against 
the  collector  and  surveyor  of  the  port  of  iS'ew  York  for  seizing  the  ship  . 
American  Eagle,  her  tackle,  apparel,  etc.  The  seizure  was  made  July 
10,  1810,  by  order  of  President  Madison  under  section  three  of  the  act 
of  1794,  corresponding  to  section  5283.  The  ship  was  intended  for  the 
service  of  Petion  against  Christophe,  who  had  divided  the  island  of 


CHAP.  III.]  THE   "  THREE   FRIENDS."  753 

Hayti  between  them  and  were  engaged  in  a  bloody  contest,  but  whose 
belligerency  had  not  been  recognized.  It  was  held  that  tlie  service  of 
"any  foreign  prince  or  state"  imported  a  prince  or  state  which  had 
been  recognized  by  the  gov'^erninent,  and  as  there  was  no  recognition 
in  any  manner,  the  question  whether  the  recognition  of  the  belligerency 
of  a  de  facto  sovereignty  would  bring  it  within  those  words,  did  not 
arise. 

The  case  of  The  Estrella,  4  Wheat.  298,  involved  the  capture  of  a 
Venezuelan  privateer  on  April  24,  1817.  There  was  a  recapture  by  an 
American  vessel,  and  the  prize  thus  came  before  the  court  at  New 
Orleans  for  adjudication.  The  privateer  was  found  to  have  a  regular 
commission  from  Bolivar,  issued  as  early  as  1816,  but  it  had  violated 
section  two  of  the  act  of  1794,  which  is  the  same  as  section  two  of  the 
act  of  1818,  omitting  the  words  "colony,  district,  or  people"  (and  is 
now  section  5282  of  the  Kevised  Statutes),  by  enlisting  men  at  New 
Orleans,  provided  Venezuela  was  a  state  within  the  meaning  of  that 
act.  The  decision  proceeded  on  the  ground  that  Venezuela  was  to  be 
so  regarded  on  the  theory  that  recognition  of  belligerency  made  the 
belligerent  to  that  intent  a  state. 

In  The  Nueva  Anna  and  Liebre,  6  Wheat.  193,  the  record  of  a  prize 
court  at  "Galveztown,"  constituted  under  the  authority  of  the 
"Mexican  Republic,"  was  offered  in  proof,  and  this  court  refused  to  i 
recognize  the  belligerent  right  claimed,  because  our  government  had  j 
not  acknowledged  "  the  existence  of  any  Mexican  republic  or  state  at 
war  witli  Spain  ;  "  and  in  The  Gran  Para,  7  Wheat.  471,  Chief  Justice 
Marshall  referred  to  Buenos  Ayres  as  a  state  within  the  meaning  of 
the  act  of  1794. 

Even  if  the  word  "  state  "  as  previously  employed  admitted  of  a  less 
liberal  signification,  why  should  the  meaning  of  the  words  "  colony, 
district,  or  people  "  be  confined  only  to  parties  recognized  as  belligerent  ? 
Neither  of  these  words  is  used  as  equivalent  to  the  word  "  state,''  for 
they  were  added  to  enlarge  the  scope  of  a  statute  which  already  con- 
tained that  word.  The  statute  does  not  sa^'  foreign  colony,  district,  or 
people,  nor  was  it  necessary,  for  the  reference  is  to  that  which  is  part 
of  the  dominion  of  a  foreign  prince  or  state,  though  acting  in  hostility 
to  such  prince  or  state.  Nor  are  the  words  apt  if  confined  to  a  bellig- 
erent. As  argued  by  counsel  for  the  government,  an  insurgent  colony 
under  the  act  is  the  same  before  as  after  the  recognition  of  belligerency, 
as  shown  by  the  instance  of  the  colonies  of  Buenos  Ayres  and  Para- 
guay, the  belligerency  of  one  having  been  recognized  but  not  of  the 
other,  while  the  statute  was  plainly  applicable  to  both.  Nor  is  district 
an  appropriate  designation  of  a  recognized  power  de  facto,  since  such  a 

power  would  represent  not  the  territory  actually  held  but  the  territory 

48 


754  BELLIGERENTS   AND   NEUTRALS.  [PART  II. 

covered  by  the  claim  of  sovereignty.  And  the  word  "people,"  when 
not  used  as  the  equivalent  of  state  or  nation,  must  apply  to  a  body  of 
persons  less  than  a  state  or  nation,  and  this  meaning  would  be  satisfied 
by  considering  it  as  applicable  to  any  consolidated  political  body. 

In  United  States  v.  Quincy,  6  Pet.  445,  4(37,  an  indictment  under  the 
third  section  of  the  act  of  1818,  the  court  disposed  of  the  following, 
anion"-  other  points,  thus  :  "  The  last  instruction  or  opinion  asked  on 
the  part  of  the  defendant  was  :  That  according  to  the  evidence  in  the 
cause,  the  United  Provinces  of  Rio  de  la  Plata  is,  and  was  at  the  time 
of  the  offence  alleged  in  the  indictment,  a  government  acknowledged 
by  the  United  States,  and  thus  was  a  'state  '  and  not  a  '  people  '  within 
.the  meaning  of  the  act  of  Congress  under  which  the  defendant  is  in- 
dicted; the  word  'people'  in  that  act  being  intended  to  describe  com- 
munities under  an  existing  government  not  recognized  by  the  United 
States ;  and  that  the  indictment  therefore  cannot  be  supported  on  this 
evidence. 

'•  The  indictment  charges  that  the  defendant  was  concerned  in  fitting 
out  the  Bolivar  with  intent  that  she  should  be  employed  in  the  service 
of  a  foreign  '  people; '  that  is  to  say,  in  the  service  of  the  United  Pro- 
vinces of  Rio  de  la  Plata.  It  was  in  evidence,  that  the  United 
Provinces  of  Rio  de  la  Plata  had  been  regularly  acknowledged  as  an 
independent  nation  by  the  executive  department  of  the  government 
of  the  United  States,  before  the  year  1827.  And  therefore  it  is  argued 
that  the  word  '  people  '  is  not  properly  applicable  to  that  nation  or 
power. 

"  The  objection  is  one  purely  technical,  and  we  think  not  well 
founded.  The  word  '  people,'  as  here  used,  is  merely  descriptive  of 
the  power  in  whose  service  the  vessel  was  intended  to  be  employed ; 
and  it  is  one  of  the  denominations  applied  by  the  act  of  Congress  to  a 
foreign  power.  The  words  are,  '  in  the  service  of  any  foreign  prince 
or  state,  or  of  any  colony,  district,  or  people.'  The  application  of  the 
word  '  people '  is  rendered  sufficiently  certain  by  what  follows  under 
the  videlicet,  '  that  is  to  say,  the  United  Provinces  of  Rio  de  la  Plata.' 
This  particularizes  that  which  by  the  word  'people'  is  left  too  general. 
The  descriptions  are  no  way  repugnant  or  inconsistent  with  each  other, 
and  may  well  stand  together.  That  which  comes  under  the  videlicet, 
only  serves  to  explain  what  is  doubtful  and  obscure  in  the  word 
'  people.'  " 

All  that  was  decided  was  that  any  obscurity  in  the  word  "people" 
as  applied  to  a  recognized  government  was  cured  by  the  videlicet. 

Nesbitt  v.  Luslilngton,  4  T.  R.  783,  was  an  action  on  a  policy  of  in- 
surance in  the  usual  form,  and  among  the  perils  insured  against  were 
"pirates,  rovers,  thieves,"  and  "  arrests,  restraints,  and  detainments  of 


CHAP.  III.]  THE   "  THREE   FKIENDS."  755 

all  kings,  princes,  and  people,  of  what  nation,  condition,  or  quality 
soever."  The  vessel  with  a  cargo  of  corn  was  driven  into  a  port  and 
was  seized  by  a  mob  who  assumed  the  government  of  her  and  forced 
the  captain  to  sell  the  corn  at  a  low  price.  It  was  ruled  that  this  was 
a  loss  by  pirates,  and  the  maxim  noacitur  a  soclls  was  applied  by  Lord 
Kenyon  and  Mr.  Justice  Buller.  Mr.  Justice  Buller  said:  "  'People' 
means  '  the  supreme  power  ;  '  '  the  power  of  the  country,'  whatever  it 
may  be.  This  appears  clear  from  another  part  of  the  policy ;  for 
where  the  underwriters  insure  against  the  wrongful  acts  of  individuals, 
they  describe  them  by  the  names  of  '  pirates,  rogues,  thieves ; '  then 
having  stated  all  the  individual  persons^  against  whose  acts  they  engage, 
they  mention  other  risks,  those  occasioned  by  the  acts  of  'kings, 
princes,  and  i^eopleoi  what  nation,  condition,  or  quality  soever.'  Those 
words  therefore  must  apply  to  '  nations '  in  their  collective  capacity." 

As  remarked  in  the  brief  of  IMessrs.  Richard  H.  Dana,  Jr.,  and 
Horace  Gray,  Jr.,  filed  by  Mr.  Gushing  in  3Iauran  v.  Tnsumnce  Co., 
6  Wall.  1,  the  words  were  "doubtless  originally  inserted  with  the  view 
of  enumerating  all  possible  forms  of  government,  monarchical,  aristo- 
cratical,  and  democratic." 

The  British  Foreign  Enlistment  Act,  59  Geo.  III.  c.  69,  was  bottomed 
on  the  act  of  1818,  and  the  seventh  section,  the  opening  portion  of 
which  corresponded  to  the  third  section  of  that  act.  Its  terms  were, 
however,  considerably  broader  and  left  less  to  construction.  But  we 
think  the  words  ''colony,  district,  or  people  "  must  be  treated  as  equally 
comprehensive  in  their  bearing  here. 

In  the  case  of  The  Salvador,  L.  R.  3  P.  C.  218,  the  Salvador  had 
been  seized  under  warrant  of  the  governor  of  the  Bahama  Islands  and 
proceeded  against  in  the  Vice-Admiralty  Court  there  for  breach  of  that 
section,  and  was,  upon  the  hearing  of  the  cause,  ordered  to  be  restored, 
the  court  not  being  satisfied  that  the  vessel  was  engaged,  within  the 
meaning  of  the  section,  in  aiding  parties  in  insurrection  against  a 
foreign  government,  as  such  parties  did  not  assume  to  exercise  the 
powers  of  government  over  any  portion  of  the  territory  of  such  govern- 
ment. This  decision  was  overruled  on  appeal  by  the  Judicial  Com- 
mittee of  the  Privy  Council,  and  Lord  Cairns,  delivering  the  opinion, 
said  :  "  It  is  to  be  observed  that  this  part  of  the  section  is  in  the  alter- 
native. The  ship  may  be  employed  in  the  service  of  a  foreign  prince, 
state,  or  potentate,  or  foreign  state,  colon}^,  province,  or  part  of  any 
province  or  people  ;  that  is  to  say,  if  you  find  any  consolidated  body 
in  the  foreign  state,  whether  it  be  the  potentate,  who  has  the  absolute 
dominion,  or  the  government,  or  a  part  of  the  province,  or  of  the  peo- 
ple, or  the  whole  of  the  province  or  the  people  acting  for  themselves, 
that  is  sufficient.     But  by  way  of  alternative  it  is  suggested  that  there 


756  BELLIGERENTS    AND   NEUTRALS.  [PART  IT. 

may  he  a  case  where,  although  yon  cannot  say  that  the  province,  or 
the  people,  or  a  part  of  the  province  or  people  are  employing  the  ship, 
there  yet  may  be  some  person  or  persons  who  may  be  exercising,  or 
assuming  to  exercise,  powers  of  government  in  the  foreign  colony  or 
state,  drawing  the  whole  of  the  material  aid  for  the  hostile  proceed- 
ings from  abroad  ;  and,  therefore,  by  way  of  alternative,  it  is  stated  to 
be  sufficient,  if  you  find  the  ship  prepared  or  acting  in  the  service  of 
'  any  person  or  persons  exercising,  or  assuming  to  exercise,  any  powers 
of  government  in  or  over  any  foreign  state,  colony,  province,  or  part  of 
any  province  or  people  ; '  but  that  alternative  need  not  be  resorted  to, 
if  you  find  the  ship  is  fitted  out  and  armed  for  the  purpose  of  being 
'  employed  in  the  service  of  any  foreign  state  or  people,  or  part  of  any 
province  or  people.'     *     *     * 

"It  may  be  (it  is  not  necessary  to  decide  Avhether  it  is  or  not)  that 
you  could  not  state  who  were  the  person  or  persons,  or  that  there  were 
any  person  or  persons  exercising,  or  assuming  to  exercise,  powers  of 
government  in  Cuba,  in  opposition  to  the  Spanish  authorities.  That 
may  be  so ;  their  lordships  express  no  opinion  upon  that  subject,  but 
tliey  will  assume  that  there  might  be  a  difficulty  in  bringing  the  case 
within  that  second  alternative  of  the  section,  but  their  lordships  are 
clearly  of  opinion  that  there  is  no  difficulty  in  bringing  the  case  under 
the  first  alternative  of  the  section,  because  their  lordships  find  these 
propositions  established  beyond  all  doubt,  —  there  was  an  insurrection 
in  the  island  of  Cuba ;  there  were  insurgents  who  had  formed  them- 
selves into  a  body  of  people  acting  together,  undertaking  and  conduct- 
ing hostilities;  these  insurgents,  beyond  all  doubt,  formed  part  of  the 
province  or  people  of  Cuba;  and  beyond  all  doubt  the  ship  in  question 
was  to  be  employed,  and  was  employed,  in  connection  with  and  in  the 
service  of  this  body  of  insurgents." 

We  regard  these  observations  as  entirely  apposite,  and  while  the 
word  "  people  "  may  mean  the  entire  body  of  the  inhabitants  of  a  state  ; 
or  the  state  or  nation  collectively  in  its  political  capacity  ;  or  the 
ruling  power  of  the  country  ;  its  meaning  in  this  branch  of  the  section, 
taken  in  connection  with  the  words  "  colony  "  and  "district,"  covers 
in  our  judgment  any  insurgent  or  insurrectionai-y  "body  of  people  act- 
ing together,  undertaking  and  conducting  hostilities,"  although  its 
belligerency  has  not  been  recognized.  Nor  is  this  view  otherwise  than 
confirmed  by  the  use  made  of  the  same  words  in  the  succeeding  part  of 
the  sentence,  for  they  are  there  employed  in  another  connection,  that 
is,  in  relation  to  the  cruising,  or  the  commission  of  hostilities,  "against 
the  subjects,  citizens,  or  property  of  any  foreign  prince  or  state,  or  of 
any  colony,  district,  or  people,  with  whom  the  United  States  are  at 
peace  ; "  and,  as  thus  used,  are  affected  by  obviously  different  considera- 


CHAP.  III.]  THE   "  THREE   FRIENDS."  757 

tions.  If  the  necessity  of  recognition  in  respect  of  the  objects  of  hos- 
tilities, by  sea  or  land,  were  conceded,  that  would  not  involve  the 
concession  of  such  necessity  in  respect  of  those  for  whose  service  the 
vessel  is  fitted  out. 

Any  other  conclusion  rests  on  the  unreasonable  assumption  that  the 
act  is  to  remain  ineffectual  unless  the  government  incurs  the  restraints 
and  liabilities  incident  to  an  acknowledgment  of  belligerency.  On 
the  one  hand,  pecuniary  demands,  reprisals,  or  even  war,  may  be  the 
consequence  of  failure  in  the  performance  of  obligations  towards  a 
friendly  power,  while  on  the  other,  the  recognition  of  belligerency 
involves  the  rights  of  blockade,  visitation,  search,  and  seizure  of  con- 
traband articles  on  the  high  seas,  and  abandonnient  of  claims  for  repa- 
ration on  account  of  damages  suffered  by  our  citizens  from  the 
prevalence  of  warfare. 

No  intention  to  circumscribe  the  means  of  avoiding  the  one  by  im- 
posing as  a  condition  the  acceptance  of  the  contingencies  of  the  other 
can  be  imputed. 

Belligerency  is  recognized  when  a  political  struggle  has  attained  a 
certain  magnitude  and  affects  the  interests  of  the  recognizing  power; 
and  in  the  instance  of  maritime  operations,  recognition  may  be  com- 
pelled, or  the  vessels  of  the  insurgents,  if  molesting  third  parties,  may 
be  pursued  as  pirates.  The  Ambrose  Llglit,  25  Fed.  Eep.  408;  3  Whart. 
Dig.  Int.  Law,  §  381 ;  and  authorities  cited.^ 

1  Treat,  J.  (in  U.  S.  v.  One  Hundred  Barrels,  1862,  27  Fed.  Cas.  292,  297),  said  in 
speaking  of  results  flowing  from  recognition  of  belligerency  of  Soutliern  States:  "  Tlie 
position  of  foreign  nations  with  respect  to  this  insurrection  *  *  *  does  not  determine 
its  status  in  American  courts.  The  latter  follow  exclusively  the  decision  of  the 
political  department  of  the  United  States  Government  on  tiiat  question.  Even  if  other 
nations  had  recognized  the  so-called  Confederate  Government  as  an  independent 
power,  their  recognition  would  bind  themselves  and  their  subjects  alone  —  not  the 
United  States.  Those  foreign  nations  which  have  recognized  a  state  of  belligerency, 
and  assumed  the  position  of  neutrals,  estop  their  subjects  from  disputing  the  lawful- 
ness of  captures  on  the  high  seas  according  to  the  laws  of  maritime  warfare.  The 
ships  and  cargoes  of  their  subjects  are  to  be  judged  accordingly.  But  rebel  property 
thus  captured  is  amenable  to  municipal  authority.  *  *  «  In  the  adjudication  of  all 
such  questions  arising  here,  the  United  States  statutes  would  furnish  the  rules  of 
decision.  In  other  words,  as  to  all  foreign  nations,  the  United  States  Government  is 
absolutely  sovereign  within  its  own  territorial  limits,  and  over  its  own  subjects.  Its 
internal  constitution  is  a  subject  with  which  foreign  powers  have  no  right  to  inter- 
meddle. The  equality  and  independence  of  nations  could  not  otherwise  exist.  How- 
ever much  the  great  powers  of  Europe  have,  in  time  past,  violated  that  rule,  they  have 
80  far  recognized  its  rightfulness,  as  to  offer  always  in  excuse  for  their  violations  of  it, 
some  real  or  supposed  emergency,  which  they  claimed  worked  a  legitimate  exception 
to  its  otherwise  universal  application  — thus  doing  homage  to  the  principle  even  when 
practically  assailing  it." 

Belligerency  is  a  fact;   when  this  fact  exists,   it   not   only   may   but   should  be 


758  BELLIGERENTS   AND   NEUTRALS.  [PART  IL 

But  it  belongs  to  the  political  department  to  determine  when  bellig- 
erency sliall  be  recognized,  and  its  action  must  be  accepted  according 
to  the  terms  and  intention  expressed. 

The  distinction  between  i-ecognition  of  belligerency  and  recognition 
of  a  condition  of  political  revolt,  between  recognition  of  the  existence 
of  war  in  a  material  sense  and  of  war  in  a  legal  sense,  is  sharply  illus- 
trated by  the  case  before  us.  For  here  the  political  department  has 
not  recognized  the  existence  of  a  de  facto  belligerent  power  engaged  in 

,  hostility  with  Spain,  but  has  recognized  the  existence  of  insurrectionary 
warfare  prevailing  before,   at   the  time  and  since  this  forfeiture  is 

,   alleged  to  have  been  incurred. 

On  June  12,  ]895,  a  formal  proclamation  was  issued  by  the  Presi- 
dent and  countersigned  by  the  Secretary  of  State,  informing  the 
people  of  the  United  States  that  the  island  of  Cuba  was  "the  seat  of 
serious  civil  disturbances  accompanied  by  armed  resistance  to  the 
authority  of  the  established  government  of  Spain,  a  power  with  which 

recognized.  To  "recognize"  tliat  which  does  not  exist,  is  practically  speaking  to 
lielp  to  create  it,  and  bring  it  into  existence.  Such  action  would  be,  to  put  it  mildly, 
the  manifestation  of  an  unfriendly  feeling  which  amounts  to  little  less  than  intervention. 
As  to  the  exact  period  when  recognition  of  belligerency  is  permissible,  see  Presi- 
dent Grant's  Seventh  Annual  Message  of  Dec.  7,  1875  (7  Richardson's  Messages  & 
Papers,  33G-;140),  refusing  to  recognize  the  "  existence  of  war  "  in  Cuba.  "  Unless 
1  justified  by  necessity,"  he  says,  "it  is  always,  and  justly,  regarded  as  an  unfriendly 
I  act  and  a  gratuitous  demonstration  of  moral  support  to  the  rebellion.  It  is  necessary, 
and  it  is  required,  when  the  interests  and  rights  of  another  government  or  of  its  people 
are  so  far  affected  by  a  pending  civil  confhc;t  as  to  require  a  definition  of  its  relations 
to  the  parties  thereto.  But  this  conflict  must  be  one  which  will  be  recognized  in  the 
sense  of  international  law  as  war.  Belligerence,  too,  is  a  fact,  the  mere  existence  of 
contending  armed  bodies  and  their  occasional  conflicts  do  not  constitute  war  in  the  sense 
referred  to.  *  *  *  Such  recognition  entails  upon  the  country  according  the  rights 
which  flow  from  it  difiicult  and  complicated  duties,  and  requires  the  exaction  from  the 
contending  parties  of  the  strict  observance  of  their  rights  and  obligations.  It  confers 
the  right  of  search  upon  the  high  seas  by  vessels  of  both  parties;  it  would  subject  the 
carrying  of  arms  and  munitions  of  war,  which  now  may  be  freely  transported,  freely 
and  without  interruption,  in  tlie  vessels  of  the  United  States  to  detention  and  possible 
seizure;  it  would  give  rise  to  countless  vexatious  questions,  would  release  the  parent 
government  from  responsibility  for  acts  done  by  the  insurgents,  and  would  invest 
Spain  with  the  right  to  exercise  the  supervision  recognized  by  our  treaty  of  1795  over 
our  commerce  on  the  high  seas,  a  very  large  part  of  which,  in  its  traffic  between  the 
Atlantic  and  the  Gulf  States  and  between  ail  of  them  and  the  States  on  the  Pacific, 
passes  through  the  waters  wliich   wash  the  shores  of  Cuba." 

It  will  not  be  questioned  that  General  Grant  knew  what  war  really  was;  his 
statement  of  the  rights  flowing  from  it  is  equally  clear,  concise,  and  correct.  It  will 
be  remembered  that  the  late  President  McKinley  quoted  this  passage  at  length  in 
his  first  Annual  Message,  December  6,  1897(10  Richardson,  id.  132-133).  Reference 
should  be  made  to  Dana's  note  15  to  p.  34  of  his  edition  of  Wheaton.  It  is  not  too 
much  to  say  that  this  foot-note  states  tl  e  doctrine  of  international  law  on  this  vexed 
subject  in  a  way  which  bids  fair  to  render  it  a  classic.  —  Ed. 


CHAP.  III.]  THE   "  THREE   FRIENDS."  759 

the  United  States  are  and  desire  to  remain  on  terms  of  peace  and 
amity  ;"  declaring  that  "the  laws  of  the  United  States  prohibit  their 
citizens,  as  well  as  all  others  being  within  and  subject  to  their  juris- 
diction, from  taking  part  in  such  disturbances  adversely  to  such  estab- 
lished government,  by  accepting  or  exercising  commissions  for 
war-like  service  against  it,  by  enlistment  or  procuring  others  to  enlist 
for  such  service,  by  fitting  out,  or  arming,  or  procuring  to  be  fitted  out 
and  armed  ships  of  war  for  such  service,  by  augmenting  the  force  of 
any  ship  of  war  engaged  in  such  service  and  arriving  in  a  port  of 
the  United  States,  and  by  setting  on  foot  or  providing  or  preparing 
the  means  for  military  enterprises  to  be  carried  on  from  the  United 
States  against  the  territory  of  such  government;"  and  admonishing  all 
such  citizens  and  other  persons  to  abstain  from  any  violation  of  these 
laws. 

In  his  annual  message  of  December  2,  1895,  the  President  said : 
*'  Cuba  is  again  gravely  disturbed.  An  insurrection,  in  some  respects 
more  active  than  the  last  preceding  revolt,  which  continued  from  1868 
to  1878,  now  exists  in  a  large  part  of  the  eastern  interior  of  the  island, 
menacing  even  some  populations  of  the  coast.  Besides  deranging 
of  the  commercial  exchanges  of  the  island,  of  which  our  country  takes 
the  predominant  share,  this  flagrant  condition  of  hostilities,  by  arous- 
ing sentimental  sympathy  and  inciting  adventurous  support  among 
our  people,  has  entailed  earnest  effort  on  the  part  of  this  government 
to  enforce  obedience  to  our  neutrality  laws,  and  to  prevent  the  terri- 
tory of  the  United  States  from  being  abused  as  a  vantage  ground  from 
which  to  aid  those  in  arms  against  Spanish  sovereignty. 

"Whatever  may  be  the  traditional  sympathy  of  our  countrymen  as 
individuals  with  a  people  who  seem  to  be  struggling  for  larger  auton- 
omy and  greater  freedom,  deepened  as  such  sympathy  naturally  must 
be  in  behalf  of  our  neiglibors,  yet  the  plain  duty  of  their  government 
is  to  observe  in  good  faith  the  recognized  obligations  of  international 
relationship.  The  performance  of  this  duty  should  not  be  made  more 
difficult  by  a  disregard  on  the  part  of  our  citizens  of  the  obligations 
growing  out  of  their  allegiance  to  their  country,  which  should  restrain 
them  from  violating  as  individuals  the  neutrality  which  the  nation  of 
which  they  are  members  is  bound  to  observe  in  its  relations  to  friendly 
sovereign  states.  Though  neither  the  warmth  of  our  people's  sym- 
pathy with  the  Cuban  insurgents,  nor  our  loss  and  material  damage 
consequent  upon  the  futile  endeavors  thus  far  made  to  restore  peace 
and  order,  nor  any  shock  our  humane  sensibilities  may  have  received 
from  the  cruelties  which  appear  to  especially  characterize  this  sangui- 
nary and  fiercely  conducted  war,  have  in  the  least  shaken  the  determi- 
nation of  the  government  to  iionestly  fulfil  every  international  obligation, 


760  BELLIGERENTS    AND   NEUTRALS.  [PART  II. 

yet  it  is  to  be  earnestly  hoped,  on  every  ground,  that  the  devasta- 
tion of  armed  conflict  may  speedily  be  stayed,  and  order  and  quiet  re- 
stored to  the  distracted  island,  bringing  in  their  train  the  activity  and 
thrift  of  peaceful  pursuits," 

July  27,  1896,  a  further  proclamation  was  promulgated,  and  in  the 
annual  message  of  December  7,  1896,  the  President  called  attention  to 
the  fact  that  "  the  insurrection  in  Cuba  still  continues  with  all  its  per- 
plexities," and  gave  an  extended  review  of  the  situation. 

We  are  thus  judicially  informed  of  the  existence  of  an  actual  con- 
flict of  arms  in  resistance  of  the  authority  of  a  government  with  which 
the  United  States  are  on  terms  of  peace  and  amity,  although  acknowl- 
edgment of  the  insurgents  as  belligerents  by  the  political  depart- 
ment has  not  taken  place  ;  and  it  cannot  be  doubted  that,  this  being  so, 
the  act  in  question  is  applicable. 

"NVe  see  no  justification  for  importing  into  section  5283  words  which 
it  does  not  contain  and  which  would  make  its  operation  depend  upon 
the  recognition  of  belligerency ;  and  while  the  libel  might  have  been 
drawn  with  somewhat  greater  precision,  we  are  of  opinion  that  it 
should  not  have  been  dismissed. 

Decree  reversed. 


SkCTION    42. COXTRABAXD    OF    WaK. 


THE    '-PETEEHOFF." 

Supreme  Court  of  the  United  States,  1866. 

(5  Wallace,  28,  58.) 

Mr.  Chief  Justice  Chase  :  ^  — 

"  The  classification  of  goods  as  contraband  or  not  contraband  has 
much  perplexed  text-writers  and  jurists.  A  strictly  accurate  and 
satisfactory  classification  is  perhaps  impracticable ;  but  that  which 
is  best  supported  by  American  and  English  decisions  may  be  said  to 
divide  all  merchandise  into  three  classes.  Of  these  classes,  the  first 
consists  of  articles  manufactured  and  primarilj^  and  ordinarily  used 
for  military  purposes  in  time  of  war ;  the  second,  of  articles  which 
may  be  and  are  used  for  jDurposes  of  war  or  peace,  according  to  cir- 
cumstances ;  and  the  third,  of  articles  exclusively  used  for  peaceful 
purposes. 

"  Merchandise  of  the  first  class,  destined  to  a  belligerent  country 

^  Facts  omitted  and  onlj'  tliat  part  of  the  opinion  is  given  relating  to  contraband 
and  its  classification.  —  Ed. 


CHAP.  III.]  THE   "  PETERHOFF."  701 

or  places  occupied  by  the  army  or  navy  of  a  belligerent,  is  always 
contraband ;  merchandise  of  the  second  class  is  contraband  only 
when  actually  destined  to  the  military  or  naval  use  of  a  belligerent ; 
while  merchandise  of  the  third  class  is  not  contraband  at  all,  though 
liable  to  seizure  and  condemnation  for  violation  of  blockade  or 
siege. 

"  A  considerable  portion  of  the  cargo  of  the  Peterhoff  was  of  the 
third  class,  and  need  not  be  further  referred  to. 

"  A  large  portion,  perhaps,  was  of  the  second  class,  but  is  not 
proved,  as  we  think,  to  have  been  actually  destined  to  belligerent 
use,  and  cannot  therefore  be  treated  as  contraband.  Another  por- 
tion was,  in  our  judgment,  of  the  first  class,  or,  if  of  the  second, 
destined  directly  to  the  rebel  military  service.  This  portion  of  the 
cargo  consisted  of  the  cases  of  artillery  harness,  and  of  articles  de- 
scribed in  the  invoices  as  '  men's  army  bluchers,'  '  artillery  boots,' 
and  'government  regulation  gray  blankets.'  These  goods  come 
fairly  under  the  description  of  goods  primarily  and  ordinarily  used 
for  military  purposes  in  time  of  war.  They  make  part  of  the  neces- 
sary equipment  of  an  army. 

"  It  is  true  that  even  these  goods,  if  really  intended  for  sale  in  the 
market  of  Matamoras,  would  be  free  of  liability;  for  contraband  | 
may  be  transported  by  neutrals  to  a  neutral  port,  if  intended  to  ' 
make  part  of  its  general  stock  in  trade.  But  there  is  nothing  in  the 
case  wliich  tends  to  convince  us  that  such  was  their  real  destina- 
tion, while  all  the  circumstances  indicate  that  these  articles,  at 
least,  were  destined  for  the  use  of  the  rebel  forces  then  occupymg 
Brownsville,  and  other  places  in  the  vicinity. 

"And  contraband  merchandise  is  sul)ject  to  a  different  rule  in  re- 
spect to  ulterior  destination  than  that  which  applies  to  merchandise 
not  contraband.  The  latter  is  liable  to  capture  only  when  a  viola- 
tion of  blockade  is  intended ;  the  former  when  destined  to  the  hostile 
country,  or  to  the  actual  military  or  naval  use  of  the  enemy,  whether 
blockaded  or  not. 

"The  trp.de  of  neutrals  with  belligerents  in  articles  not  contra- 
band is  absolutely  free,  unless  interrupted  by  blockade ;  the  convey-  . 
ance  by  neutrals  to  belligerents  of  contraband  and  articles  is  always  I 
unlawful,  and  such  articles  may  always  be  seized  during  transit  by  » 
sea.     Hence,  while  articles,  not  contraband,  might  be  sent  to  Mata- 
nioras  and  beyond  to  the  rebel  region,  where  the  communications 
were  not  interrupted  by  blockade,  articles  of  a  contraband  char- 
acter, destined  in  fact  to  a  state  in  rebellion,  or  for  the  use  of  the 
rebel  military  forces,  were  liable  to  capture,  though  primarily  des- 
tined to  Matamoras. 


702  BELLIGERENTS    AND   NEUTRALS.  [PART  II. 

"We  are  obliged  to  conclude  that  the  portion  of  the  cargo  which  we 
have  characterized  as  contraband  must  be  condemned. 

"  And  it  is  an  established  rule  that  the  part  of  the  cargo  belonging  to 
the  same  owner  as  the  contraband  portion  must  share  its  fate.  This 
rule  is  well  stated  by  Chancellor  Kent,  thus  :  '  Contraband  articles  are 
infectious,  as  it  is  called,  and  contaminate  the  whole  cargo  belonging 
to  the  same  owners,  and  the  invoice  of  any  particular  article  is  not 
usually  admitted,  to  exempt  it  from  general  confiscation.' 

"  So  much  of  the  cargo  of  the  Peterhoff,  therefore,  as  actually  be- 
longed to  the  owner  of  the  artillery  harness,  and  the  other  contraband 
goods,  must  be  also  condemned."  ^ 


THE   "JONGE   MAEGARETHA." 
High  Court  of  Admiralty,  1799. 
(1  C.  Robinson,  189.) 

This  was  a  case  of  a  Papenberg  ship,  taken  on  a  voyage  from 
Amsterdam  to  Brest  with  a  cargo  of  cheese,  April,  1797. 

Judgment, — Sir  W.  Scott  : — 

"  There  is  little  reason  to  doubt  the  property  in  this  case,  and 
therefore  passing  over  the  observations  which  have  been  made  on 
that  part  of  the  subject,  I  shall  confine  myself  to  the  single  ques- 
tion :  Is  this  a  legal  transaction  in  a  neutral,  being  the  transaction 
of  a  Papenberg  ship  carrying  Dutch  cheese  from  Amsterdam  to 
Brest,  or  Morlaix  (it  is  said),  but  certainly  to  Brest;  or,  as  it  may 
be  otherwise  described,  the  transaction  of  a  neutral  carrying  a  cargo 
of  provisions,  not  the  product  and  manufacture  of  his  own  country, 
but  of  the  enemy's  ally  in  the  war — of  provisions  which  are  a  capi- 
tal ship's  store — and  to  the  great  port  of  naval  equipment  of  the 
enemy. 

"  If  I  adverted  to  the  state  of  Brest  at  this  time,  it  might  be  no 
unfair  addition  to  the  terms  of  the  description,  if  I  noticed,  what 
was  notorious  to  all  Europe  at  this  time,  that  there  was  in  that  port 

1  For  the  Proclamation  of  Cliarles  I.,  1626,  on  contraband  and  the  various  articles 
enumerateil  and  designated  as  such,  see  Robinson's  Collectanea  Maritima,  Hi. 
\      In  the  civil  war  coin  and  bullion,  etc.,  were  considered  contraband.     U.  S.  v.  Dlekel- 
mini,  1875,  'J2  U.  S.  520;  likewise  cotton.     Mrs.  Alexander  s  Cotton,  1864,  2  Wall.  404. 
That  a  submarine  cable  and  vessel  employed  in  laying  it  may,  for  a  belligerent 
5  under  certain  circumstances,  partake  of  tlie  nature  of  contraband,  see  The  International, 
'  1871,  L.  R.,  3  Adm.  &  Ecc.  321  at  S3G ;  Goffin,  Submarine  Cables  in  Time  of  War,  16 
Law  Quarterly  Hev.,  146-154;  Liszt,  327;  25  Journal  de  Droit  Int.  Prive,  048-662, 
Gy'J-701.  — Ed. 


CHAr.  III.]  THE    "JONGE   MARGARETHA."  763 

a  considerable  French  fleet  in  a  state  of  preparation  for  sullying; 
forth  on  a  hostile  expedition;  its  motions  at  that  time  were  watched 
with  great  anxiety  by  a  British  fleet  which  lay  off  the  harbor  for 
the  purpose  of  defeating  its  designs.  Is  the  carriage  of  such  a  sup- 
ply to  such  a  place,  and  on  such  an  occasion,  a  traffic  so  purely- 
neutral  as  to  subject  the  neutral  trader  to  no  inconvenience? 

"  If  it  could  be  laid  down  as  a  general  position,  in  the  manner  in 
which  it  has  been  argued,  that  cheese  being  a  provision  is  uni- 
versally contraband,  the  question  would  be  readily  answered:  but 
the  court  lays  down  no  such  position.  The  catalogue  of  contraband 
has  varied  very  much,  and  sometimes  in  such  a  manner  as  to  make 
it  very  difficult  to  assign  tlie  reason  of  the  variations ;  owing  to  pai-- 
ticular  circumstances,  the  history  of  which  has  not  accompanied  the 
history  of  the  decisions.  In  1673,  when  many  unwarrantable  rules 
were  laid  down  by  public  authority  respecting  contraband,  it  was 
expressly  asserted  by  Sir  R.  Wiseman,  the  King's  advocate,  upon  a 
formal  reference  made  to  him,  that  by  the  practice  of  the  English 
Admiralty,  corn,  wine,  and  oil  were  liable  to  be  deemed  contraband. 
'I  do  agree,'  says  he,  reprobating  the  regulations  that  had  been  pub- 
lished, and  observing  that  rules  are  not  to  be  so  hardly  laid  down  as 
to  press  upon  neutrals,  '  that  corn,  wine,  and  oil  will  be  deemed  con- 
traband.' 

"  These  articles  of  provisions  then  were  at  that  time  confiscable, 
according  to  the  judgment  of  a  person  of  great  knowledge  and  expe- 
rience in  the  practice  of  this  court.  In  much  later  times  many  other 
sorts  of  provisions  have  been  condemned  as  contraband.  In  1747,  in 
the  Jonge  Andreas,  butter,  going  to  Rochelle,  was  condemned.  How 
it  happened  that  cheese  at  the  same  time  was  more  favourably  con- 
sidered, according  to  the  case  cited  by  Dr.  Swabey,  I  don't  exactly 
know.  The  distinction  appears  nice.  In  all  probability  the  cheeses 
were  not  of  the  species  which  is  intended  for  ship's  use.  Salted  cod 
and  salmon  were  condennied  in  the  Jonge  Frederick,  going  to 
Rochelle,  in  the  same  year.  In  1748,  in  the  Joannes,  rice  and  salted 
herrings  were  condemned  as  contraband.  These  instances  show 
that  articles  of  human  food  have  been  so  considered,  at  least  where 
it  was  probable  that  they  were  intended  for  naval  or  military  use. 

"  I  am  aware  of  the  favourable  positions  laid  down  upon  this  mat- 
ter by  Wolfius  and  Vattel,  and  other  writers  of  the  continent, 
although  Yattel  expressly  admits  that  provisions  may,  under  certain 
circumstances,  be  treated  as  contraband.  And  I  take  the  modern 
established  rule  to  be  this,  that  generally  they  are  not  contraband,' 
but  may  become  so  under  circumstances  arising  out  of  the  particu- 
lar situation  of  the  war,  or  the  condition  of  the  parties  engaged  in 


764  BELLIGERENTS    AND   NEUTRALS,  [PART  II. 

it.  The  court  must  therefore  look  to  the  circumstances  under 
which  tliis  supply  was  sent. 

"Among  tlie  circumstances  which  tend  to  preserve  provisions 
from  being  lia])le  to  be  treated  as  contraljand,  one  is,  that  they  are 
of  the  growtli  of  tlie  country  which  exports  them.  In  the  present 
case  they  are  the  product  of  anotlier  country,  and  that  a  hostile 
country;  and  the  claimant  has  not  only  gone  out  of  his  way  for  the 
supply  of  the  enemy,  but  he  has  assisted  the  enemy's  ally  iu  the  war 
by  taking  off  his  surplus  commodities. 

"  Another  circumstance  to  which  some  indulgence,  by  the  practice 
of  nations,  is  shown,  is,  when  the  articles  are  in  their  native  and  un- 
manufactured state.  Tlius,  iron  is  treated  with  indulgence,  though 
anchors  and  other  instruments  fabricated  out  of  it  are  directly  con- 
traband. Hemp  is  more  favourably  considered  than  cordage,  and 
wheat  is  not  considered  as  so  noxious  a  commodity  as  any  of  the 
final  prej)arations  of  it  for  human  use.  In  the  present  case,  the  arti- 
cle falls  under  this  unfavourable  consideration,  being  a  manufacture 
prepared  for  immediate  use. 

"  But  the  most  important  distinction  is,  whether  the  articles  were 
intended  for  the  ordinary  use  of  life,  or  even  for  mercantile  ship's 
use;  or  whether  they  were  going  with  a  highly  probable  destination 
to  military  use  ?  Of  the  matter  of  fact  on  which  the  distinction  is 
to  be  applied,  the  nature  and  quality  of  the  port  to  which  the  arti- 
cles were  going  is  not  an  irrational  test ;  if  the  port  is  a  general 
commercial  port  it  shall  be  understood  that  the  articles  were  going 
for  civil  use,  although  occasionally  a  frigate  or  other  ships  of  war 
may  be  constructed  in  that  port.  Contra,  if  the  great  predominant 
character  of  a  port  be  that  of  a  port  of  naval  military  equipment,  it 
shall  be  intended  that  the  articles  Avere  going  for  military  use, 
although  merchant  ships  resort  to  the  same  place,  and  although  it  is 
possible  that  the  articles  might  have  been  applied  to  civil  consump- 
tion ;  for  it  being  impossible  to  ascertain  the  final  use  of  an  article 
ancipitis  usus,  it  is  not  an  injurious  rule  whicli  deduces  both  ways 
the  final  use  from  the  innnediate  destination ;  and  the  presumption 
of  a  hostile  use,  founded  on  its  destination  to  a  military  port,  is  very 
much  inflamed  if  at  the  time  when  the  articles  were  going,  a  consid- 
erable armament  was  notoriously  preparing,  to  which  a  supply  of 
those  articles  Avould  be  eminently  useful. 

"In  the  case  of  the  Eendra<j1it,  cited  for  the  claimant,  the  destina- 
tion was  to  Bourdeaux;  and  though  smaller  vessels  of  war  may  be 
occasionally  built  and  fitted  out  there,  it  is  by  no  means  a  port  of 
naval  military  equipment  in  its  principal  occupation,  in  the  same 
manner  as  Brest  is  universally  known  to  be. 


CHAP.  III.]  THE    "COMMERCEN."  765 

"  The  court,  however,  was  unwilhng  in  the  present  case  to  con- 
clude the  claimant  on  the  one  point  of  destination,  it  being  alleged 
that  the  cheeses  were  not  fit  for  naval  use,  but  were  merely  luxuries 
for  the  use  of  domestic  tables.  It  therefore  permitted  both  parties 
to  exhibit  affidavits  as  to  their  nature  and  qviality.  The  claimant 
has  exhibited  none ;  but  here  are  authentic  certificates  from  persons 
of  integrity  and  knowledge  that  they  are  exactly  such  cheeses  as 
are  used  in  British  ships  when  foreign  cheeses  are  used  at  all,  and 
that  they  are  exclusively  used  in  French  ships  of  war. 

"  Attending  to  all  these  circumstances,  I  think  myself  warranted 
to  pronounce  these  cheeses  to  be  contraband,  and  condemn  them  as 

As  such,  lio\\ever,  the  party  has  acted  without  dissimulation  in 
the  case,  and  may  have  been  misled  by  an  inattention  to  circum- 
stances, to  which  m  strictness  he  ought  to  have  adverted,  as  well  as 
by  something  like  an  irregular  indulgence  on  which  he  has  relied  ;  I 
shall  content  myself  with  pronouncing  the  cargo  to  be  contraband  I 
without  enforcing  the  usual  penalty  of  the  confiscation  of  the  ship  ' 
belonging  to  the  same  proprietor."  ^ 


THE   "COMMEKCEN." 
Supreme  Court  of  the  Uxited  States,  1816. 

(1   Wheaton,  382.) 

This  was  the  case  of  a  Swedish  vessel  captured  on  the  16th  of  April, 
1814,  by  the  private  armed  schooner  Laicrence,  on  a  voyage  from 
Limerick,  in  Ireland,  to  Bilboa,  in  Spain.  The  cargo  consisted  of 
barley  and  oats,  the  property  of  British  subjects,  the  exportation  of 
wliich  is  generally  prohibited  by  the  British  Government ;  and,  as  well 
by  the  official  papers  of  the  custom-house  as  by  the  private  letters  of 
the  shippers,  it  appears  to  have  been  shipped  under  the  special  per- 
mission of  the  government  for  the  sole  use  of  his  Britannic  Majesty's 
forces  then  in  Spain. 

Story,  J.  :  —  The  single  point  now  in  controversy  in  this  cause  is, 
Avhether  the  ship  is  entitled  to  the  freight  for  the  voyage.  The  general 
rule    that  the    neutral  carrier  of  enemy's  property  is  entitled  to  his 

^  See  to  the  same  effect:  The  Frau  ^[argnretha,  1805,  G  C.  Rob.  92  ;  The  Zelden 
Rust,  1805,  6  C.  Rob.  93;  The  Ranger,  1805,  6  C.  Rob.  125  (ship's  biscuit  condemned)  ; 
The  Edward,  1801,  4  C.  Rob.  G8. 

"  To  escape  from  the  contagion  of  contraband,  the  innocent  articles  must  be  the 
property  of  a  different  owner,"  per  Sir  Win.  iScott,  iu  The  Staat  Eiubden,  1798, 
1  C.  Rob.  31.  — Eu. 


766  BELLIGERENTS   AND   NEUTRALS.  [PART  II. 

freight,  is  now  too  firmly  established  to  admit  of  discussion.  But  to 
this  rule  there  are  many  exceptions.  If  the  neutral  be  guilty  of 
fraudulent  or  unneutral  conduct,  or  has  interposed  himself  to  assist 
the  enemy  in  carrying  on  the  war,  he  is  justly  deemed  to  have  for- 
feited his  title  to  freight.  Hence,  the  carrying  of  contraband  goods 
to  the  enemy  ;  the  engaging  in  the  coasting  or  colonial  trade  of  the 
enemy  ;  the  spoliation  of  papers,  and  the  fraudulent  suppression  of 
enemy  interests  have  been  held  to  affect  the  neutral  with  the  for- 
feiture of  freight,  and  in  cases  of  a  more  flagrant  character,  such  as 
carrying  despatches  or  hostile  military  passengers,  an  engagement  iu 
the  transport  service  of  the  enemy,  and  a  breach  of  blockade,  the 
penalty  of  confiscation  of  the  vessel  has  also  been  inflicted.  By  the 
modern  law  of  nations,  provisions  are  not,  in  general,  deemed  contra- 
band, but  they  may  become  so,  although  the  property  of  a  neutral,  on 
account  of  the  particular  situation  of  the  war,  or  on  account  of  their 
destination.  If  destined  for  the  ordinary  use  of  life  in  the  enemy's 
country  they  are  not,  in  general  contraband  ;  but  it  is  otherwise  if 
destined  for  military  use.  Hence,  if  destined  for  the  army  or  navy 
of  the  enemy,  or  for  his  ports  of  naval  or  military  equipment,  they 
are  deemed  contraband.^ 

1  Provisions. —  In  tlie  case  of  Maissonnaire  v.  Keating,  1815,  2  Gallison,  the 
question  was  as  to  tiie  validity  of  a  Russian  document,  in  whicii  the  legality  of  the 
capture  had  to  be  passed  upon.  It  was  the  case  of  a  car^'o  of  provisions ;  and  the  court 
lield  that  provisions  going  to  a  port  of  naval  equipment  of  tlie  enemy,  and  a  fortiori,  if 
destined  for  the  supply  of  his  army,  became  contraband,  and  subjected  the  vessel 
(probably  belonging  to  owner  of  cargo)  and  cargo  to  confiscation  by  the  other 
belligerent. 

Res  ancipitis  itsus. — As  to  the  question  :  what  articles  shall  be  regarded  as  contra- 
band of  war  ?  there  has  been,  and  still  is,  a  wide  difference  of  opinion.  The  English 
prize  courts,  as  shown  by  the  cases  given,  have  treated  provisions  as  contraband 
in  certain  circumstances ;  and  the  American  courts  followed  this  practice.  The 
Trench  decrees  and  decisions,  on  the  other  liand,  have  taken  the  opposite  view,  that 
provisions  are  in  no  case  to  be  treated  as  contraband.  And  yet,  in  1885,  the  French 
Government  announced  that  it  proposed  to  treat  rice  bound  for  open  Chinese  ports  as 
contraband  of  war. 

As  to  other  articles  ancipitis  usus,  those  most  in  controversy  have  been  naval  stores, 
including  in  that  term  everything  used  in  the  construction  of  ships  of  war.  The  cases 
in  whicli  these  articles  have  been  confiscated  by  the  English  prize  courts  are  very 
numerous.     A  few  of  the  leading  cases  are  as  follows : 

The  Staat  Emhden,  1798, 1  C.  Rob.  26  (masts) ;  The  Endranght,  1798,  1  C.  Rob.  22 
(timber);  The  Jonge  Tobias,  1709,1  C.  Rob.  329  (tar);  The  Sarah  Christina, 1799, 
1  C.  Rob.  237,  241  (tar  and  pitch) ;  The  Ringende  Jacob,  1798,  1  C.  Rob.  89  (hemp,  iron 
bars);   The  Neptunus,  1800,  3  C.  Rob.  108  (sail-cloth). 

The  greater  number  of  tiiese  articles  were  treated  by  Sir  William  Scott  as  goods 
absolutely  contraband,  if  going  to  an  enemy's  port,  without  considering  the  nature  of 
the  port.  The  government  of  the  United  States,  in  1797,  held  the  same  view  :  "Ship 
timber  and  naval  stores,"  said  the  Secretary  of  State,  "  are  by  the  law  of  nations  con- 


CHAP.  Iir.]  THE    "  NEUTRALLTET."  7G7 

THE   "  NEUTRALITET." 

High  Court  of  Admiralty,  1801. 

(3  C.  liobinson,  295.) 

This  was  a  case  of  a  Danish  ship  taken  with  a  cargo  on  a  voyage 
from  Archangel  to  Dordreclit.  The  ship  had  been  a  Dutch  vessel, 
and  was  asserted  to  have  been  purchased  by  Mr.  Schultz,  of  Altona. 
She  then  went  from  Holland  to  Altona,  and  was  from  thence  sent  on 
to  Archangel,  to  carry  a  cargo  to  Dordrecht,  under  a  charter  party 
made  by  the  asserted  owner. 

Judgment, — Sir  W.  Scott  : — 

"  The  modern  rule  of  the  law  of  nations  is,  certainly,  that  the  ship  . 
shall  not  be  subject  to  condemnation  for  carrying  contraband ' 
articles. 

"  The  ancient  practice  was  otherwise,  and  it  cannot  be  denied,  j 
that  it  was  perfectly  defensible  on  every  principle  of  justice.     If  to 

traband  of  war."     It  will  be  seen  by  the  French  cases  la  Minerve  and  others,  that  the  I 
French  practice  is  the  reverse  of  that  of  England  and  the  United  States. 

The  recent  changes  in  naval  warfare,  brought  about  by  the  introduction  of  steam 
power  and  steel  ships,  have  introduced  a  large  number  of  new  articles  into  the  list  of 
contraband  or  "occasional  contraband  "  goods.  This  may  be  seen  in  Mr.  G.  Lushing- 
ton's  '•  Manual  of  Naval  Prize  Law  "  (edition  of  1866),  in  which  goods  absolutely  con- 
traband are  enumerated  as  follows  :  — 

"Arms  of  all  kinds  and  machinery  for  manufacturing  arms.  Ammunition  and 
materials  for  ammunition,  including  lead,  sulphate  of  potash,  muriate  of  potash, 
cldorate  of  potash,  and  nitrate  of  soda.  Gunpowder  and  its  materials,  saltpetre  and 
brimstone ;  also  gun-cotton. 

"  Military  equipments  and  clothing.     Military  stores. 

"  Naval  stores,  such  as  masts,  spars,  rudders,  and  ship  timber,  hemp  and  cordage, 
sail-cloth,  pitch,  and  tar;  copper  fit  for  sheatliing  vessels  ;  marine  engines,  and  the 
component  parts  thereof,  including  screw-propellers,  paddle-wheels,  cylinders,  cranks, 
shafts,  boilers,  tubes  for  boilers,  boiler-plates,  fire-bars ;  marine  cement  and  the 
materials  in  the  manufacture  thereof,  as  blue-lias  and  Portland  cement.  Iron  in  any 
of  the  following  forms:  Anchors,  rivet-iron,  angle-iron,  round  bars  from  |  to  f  of  an 
inch  diameter,  rivets,  strips  of  iron,  sheet  plate-iron  exceeding  \  of  an  inch,  and 
low-moor  and  bowling  plates." 

Goods  conditionally  contraband  comprise  : 

"  Provisions  and  liquors  fit  for  the  consumption  of  army  or  navy ;  money;  tele- 
graph materials,  such  as  wire,  porous  cups,  platina,  sulphuric  acid,  and  zinc. 
Materials  for  the  construction  of  a  railway,  as  iron  bars,  sleepers,  etc. 

"  Coals,  hay,  horses,  rosin,  tallow,  timber." 

France  does  not  regard  timber  for  the  construction  of  ships  as  contraband  of  war. 
II  Volante,  1807,  Le  Conseil  des  Prises  (1  Pistoye  et  Duverdy,  409)  ;  (La  Minerve,  Id. 
410.)  For  a  recent  discussion  and  the  views  of  publicists  of  different  nationalities,  see 
25  Journal  de  Droit  Int.  Prive,  285, 441,  467, 493, 51 5,  535, 624, 652, 828, 1006,  1018.  —  Ed. 


768  BELLIGERENTS   AND   NEUTKALS.  [PART  IL 

supply  the  enemy  with  such  articles  is  a  noxious  act  with  respect  to 
the  owner  of  the  cargo,  the  vehicle  which  is  instrumental  in  effect- 
ing that  illegal  purpose  cannot  be  innocent.  The  policy  of  modern 
times  has  however  introduced  a  relaxation  on  this  point ;  and  the 
general  rule  now  is,  that  the  vessel  does  not  become  confiscable  for 
^that  act.  But  this  rule  is  liable  to  exceptions:  Where  a  ship  be- 
''  longs  to  the  owner  of  the  cargo,  or  where  the  ship  is  going  on  such 
'•  service,  under  a  false  destination  or  false  papers ;  these  circum- 
stances of  aggravation  have  been  held  to  constitute  excepted  cases 
out  of  the  modern  rule,  and  to  continue  them  under  the  ancient  one. 
The  circumstances  of  the  present  case  compose  a  case  of  exception 
also ;  for  it  is  a  case  of  singular  misconduct  on  the  part  of  the  asserted 
ship  owners.  They  are  subjects  of  Denmark,  and  as  such  are  under 
the  peculiar  obligations  of  a  treaty  not  to  carry  goods  of  this  nature 
for  the  use  of  the  enemies  of  Great  Britain. 

"  A  reference  has  been  made  to  ancient  cases  of  Dantzick  ships, 
which  were  restored,  though  taken  carrying  masts  to  Cadiz.  The 
particulars  of  those  cases  are  not  very  exactly  stated ;  but  they  were 
clearly  the  cases  of  proprietors  exporting  the  produce  of  their  own 
territory,  or  of  neighboring  ports,  without  the  breach  of  any  obliga- 
tion but  such  as  the  general  law  of  nations  imposed. 

"  In  this  instance  the  ship  was  freighted  at  Altona,  to  go  to  Arch- 
angel, for  the  purpose  of  carrying  a  cargo  of  tar  to  Holland,  which 
is  a  commerce  expressly  prohibited  by  the  Danish  treaty.  Tar  is  an 
article  which  a  Danish  ship  cannot  lawfully  carry  to  an  enemy's 
port,  even  when  it  is  the  produce  and  manufacture  of  Denmark. 
This  ship  goes  to  a  foreign  port,  to  effect  that  which  she  is  pro- 
hibited from  doing,  even  for  the  produce  of  her  own  counti-y ;  in 
this  respect,  throwing  off  the  character  of  a  Danish  ship  by  vio- 
lating the  treaties  of  her  country  ;  and  all  this  ia  done  with  the  full 
privity  of  the  asserted  owner,  who  is  the  person  entering  into  the 
charter  party.  In  such  a  case  as  the  present,  the  known  ground  on 
which  the  relaxation  was  introduced,  the  supposition  that  freights 
of  noxious  or  doubtful  articles  might  be  taken,  without  the  personal 
knowledge  of  the  owner,  entirely  fails ;  and  the  active  guilt  of  the 
parties  is  aggravated  by  the  circumstances,  of  its  being  a  criminal 
[i  traffic  in  foreign  commodities,  and  in  breach  of  explicit  and  special 
^  obligations.  The  confiscation  of  a  ship  so  engaged  will  leave  the 
general  rule  still  untouched,  that  the  carriage  of  contraband  works 
a  forfeiture  of  freight  and  expenses,  but  not  of  the  ship. 

"  Ship  condemned." 


CHAP.  III.]      CARRINGTON   V.   THE   MERCHANTS'    INS.    CO.  7G9 


CAREINGTON  AND   OTHERS    v.  THE   MERCHANTS'    INSUR- 
ANCE COMPANY. 

Supreme  Court  of  the  United  States,  1834. 

(8  Peters,  495.) 

In  1824  a  policy  of  insurance  for  -f!  10,000  was  effected  on  the  cargo 
of  tlie  General  Carrington.  At  the  commencement  of  the  voyage,  and 
nntil  the  final  loss  of  the  ship,  open  hostilities  existed  between  Spain 
and  the  new  governments  or  states  of  Chili  and  Peru.  From  the 
orders  it  was  apparent  that  the  object  of  the  voyage  was  to  sell  the 
cargo  in  Chili  and  Peru.  The  ship  was  to  proceed  direct  for  Valpa- 
raiso, and  was  to  enter  that  port  under  the  plea  of  a  want  of  water. 
Some  portion  of  the  cargo  was  expected  to  be  sold  at  that  port ;  thence 
the  ship  was  to  proceed  along  the  coast  of  Chili  and  Peru  for  the 
purpose  of  trade.  There  was  no  allegation  that  the  underwriters  were 
not  well  acquainted  with  the  nature  and  objects  of  the  voyage.  While 
lying  at  anchor  in  Quilca,  Peru,  the  vessel  was  seized  by  Spanish 
authorities. 

The  policy  was  against  the  usual  perils,  and  contained  the  following 
clause  :  "It  is  also  agreed  that  the  insurers  shall  not  be  answerable  for 
any  charge,  damage,  or  loss  which  may  arise  in  consequence  of  seizure 
or  detention  for  or  on  account  of  illicit  or  prohibited  trade,  or  trade  in 
articles  contraband  of  war."  ^ 

Mr.  Justice  Story  delivered  the  opinion  of  the  court  :'^  — 

Tliis  cause  comes  before  the  court  upon  a  certificate  of  a  division  of 
opinion  of  the  judges  of  the  Circuit  Court  for  the  district  of  Massa- 
chusetts. 

Upon  the  trial  of  the  cause  upon  the  evidence,  the  parties  pro- 
pounded certain  questions,  upon  which  the  Cirouit  Court  (with  the 
assent  of  the  parties),  certified  a  division  of  opinion,  for  the  purpose 
of  obtaining  the  final  decision  of  this  court  in  regard  to  them. 

The  first  is,  whether  a  seizure  and  detention,  to  come  within  the 
exception  of  the  policy  relating  to  contraband  and  illicit  trade,  must 
be  for  a  legal  and  justifiable  cause.  The  question  here  propounded 
is  not  whether  there  must  be  a  legal  or  justifiable  cause  for  condemna- 
tion ;  but  simply,  whether  there  must  not  be  such  cause  for  the  seizure 
and  detention.     And  we  are  of  opinion  tliat  the  question  ought  to  be 

^  The  statement  of  tlie  case  is  abbreviated.  —  Ed. 

2  That  part  of  the  opinion  dealing  witii  "tlie  fourth  and  fifth  questions"  is 
omitted.  —  Ed, 

49 


770  BELLIGERENTS   AND   NEUTRALS.  [PART  II. 

answered  iu  the  affirmative.  The  language  of  the  exception,  when 
properly  construed,  leads  to  this  conclusion ;  and  it  is  confirmed  by 
authorities  standing  upon  analogous  clauses.  The  language  is,  "  the 
assurers  shall  not  be  liable  for  any  charge,  damage,  or  loss  which  may 
arise  in  consequence  of  seizure  or  detention  for  or  on  account  of  illicit 
trade,  or  trade  in  articles  contraband  of  war."  It  is  not,  then,  every 
seizure  or  detention  which  is  excepted  ;  but  such  only  as  is  made  for, 
and  on  account,  of  a  particular  trade.  A  seizure  or  detention,  which 
is  a  mere  act  of  lawless  violence,  wholly  unconnected  with  any  supposed 
illicit  or  contraband  trade,  is  not  within  the  terms  or  spirit  of  the 
exception.  And  as  little  is  a  seizure  or  detention  not  bona  fide  made 
upon  a  just  suspicion  of  illicit  or  contraband  trade,  but  the  latter  used 
as  a  mere  pretext  or  color  for  an  act  of  lawless  violence  ;  for  under 
such  circumstances  it  can  in  no  just  sense  be  said  to  be  made  for  or  on 
account  of  such  trade.  It  is  a  mere  fraud  to  cover  a  wanton  trespass ; 
a  pretence  and  not  a  cause  for  the  tort.  To  bring  a  case,  then,  within 
the  exception,  the  seizure  or  detention  must  be  bona  fide,  and  upon  a 
reasonable  ground.  If  there  has  not  been  an  actual  illicit  or  contra- 
band trade,  there  must  at  least  be  a  well-founded  suspicion  of  it,  a 
probable  cause  to  impute  guilt,  and  justify  further  proceedings  and 
inquiries  ;  and  this  is  what  the  law  deems  a  legal  and  justifiable  cause 
for  the  seizure  or  detention.  The  general  words  of  the  policy  cover 
the  risks  of  restraints  and  detainments  of  all  kings,  princes,  and 
people.  The  exception  withdraws  from  it  such  as  are  bona  fide  made 
for,  and  on  account  of  illicit  or  contraband  trade.  So  that,  upon  the 
mere  terms  of  the  exception  there  would  not  seem  any  real  ground  for 
doubt.  But  if  there  were,  the  next  succeeding  clause  associated  with 
it  demonstrates  that  such  must  have  been  the  understanding  of  the 
parties.  It  is  there  said  that  the  judgment  of  a  foreign  consular  or 
colonial  court  shall  not  be  conclusive  upon  the  parties  as  to  the  fact  of 
there  having  been  articles  contraband  of  war  on  board,  or  as  to  the 
fact  of  an  attempt  to  trade  in  violation  cf  the  laws  of  nations.  Now, 
if  a  mere  lawless  seizure  or  detention,  under  the  pretext  of  illicit  and 
contraband  trade,  were  within  the  exception,  the  inquiry,  whether 
there  had  been  contraband  articles  on  board,  or  an  attempt  of  illicit 
trade,  would  be  in  most,  if  not  in  all  cases,  wholly  unimportant  and 
nugatory  to  the  assured,  for  whose  benefit  the  clause  is  introduced  ; 
since  the  sentence  would  always  establish  a  pretence  for  the  seizure 
and  detention,  although  not  a  justifiable  cause  for  it.  The  reasonable 
interpretation  of  the  clause  must  be  that  it  was  introduced  to  enable 
the  assured  to  disprove  the  existence  of  justifiable  cause  for  the  seizure 
or  detention,  by  showing  that  the  facts  did  not  warrant  it. 

"We  think  that  the  authorities   cited  at  the   bar  lead  to   the    same 


CHAP,  ni.]       CARRTNGTON   V.   THE   MERCHANTS'   INS.    CO.  771 

couchision.  In  Church  v.  Huhbard,  2  Cranch,  187,  2  ConJ.  Kep.  38.5; 
where  the  exception  was,  "  that  the  insurers  do  not  take  the  risk  of 
illicit  trade  with  the  Portuguese,  and  the  insurers  are  not  liable  for 
seizure  by  the  Portuguese  for  illicit  trade  ; '"  the  mam  question  was, 
whether  an  attempt  to  trade,  not  consummated  by  actual  trading,  was 
within  the  exception.  The  court  held  that  it  was.  On  that  occasion 
the  chief  justice  said,  "  no  seizure,  not  justifiable  under  the  laws  and 
regulations  established  by  the  Crown  of  Portugal  for  the  restriction  of 
foreign  commerce  with  its  dependencies,  can  come  within  this  part  of 
this  contract ;  and  every  seizure  which  is  justifiable  by  those  laws  and 
regulations  must  be  deemed  within  it."  And  applying  this  language 
to  the  circumstances  of  the  present  case,  we  may  add,  that  no  seizure 
or  detention  not  justifiable  by  the  law  of  nations  can  come  within  the 
present  exception,  and  every  seizure  which  is  justifiable  by  the  law  of 
nations  must  be  deemed  within  it.  The  cases  of  Smith  v.  The  Delaicare 
Insurance  Company,  3  Serg.  and  Kawle,  74;  2iX\(\.  Faudel  v.  The  Phoenix 
Insurance  Company,  4  Serg.  and  Rawle,  29 ;  Johnston  and  Weir  v. 
LvdIou\  1  Gaines's  Cas.  in  Error,  29;  s.  c.  2  Johns.  Gas.  481.  See 
a.]so  Lainy  v.  United  Insurance  Company.  2  J()hns.  Gas.  174;  s.  c.  2 
Johns.  Cas.  487;  Tucker  v.  Juhel,  1  Johns.  E.  20,  adopt  a  similar 
doctrine,  if  they  do  not  proceed  beyond  it.  The  case  of  Higginson  v. 
Fomroy,  11  Mass.  E.  104,  contained  an  exception  of  ''illicit  trade  with 
the  Spaniards  ; "  and  the  court  held  that  the  exception  extended  to 
every  seizure  and  detention  suggested  by  the  prohibitions  of  trade  and 
intercourse,  as  the  means  of  enforcing  them;  and  whether  of  prevention 
or  of  punishment  for  infraction  ;  and  that,  therefore,  it  extended  to 
cases  where  the  charge  of  illicit  trade  with  the  Spaniards  might  be 
ultimately  repelled ;  and  where  the  property  seized  might  be  in 
consequence  acquitted  under  the  circumstances  of  the  particular  case. 
But  this  supposes  that  there  was  probable  or  justifiable  cause  for  the 
seizure,  bona  fide  existing ;  and  the  court  explicitly  assented  to  the 
general  doctrine  in  Church  v.  Hubbard.  It  is  true  that  the  learned 
chief  justice,  in  delivering  the  opinion  of  the  court,  added,  that 
'■'perJiajys  (we  may  add),  although  not  necessary  to  the  present  decision, 
even  arbitrary  acts  of  the  Spanish  colonial  governments,  if  assumed 
to  be  justified  on  their  ])arts  by  the  prohibitions  of  trade  and  inter- 
course, are,  we  think,  within  the  exception  of  seizure  for  illicit  trade." 
This  is  professedly  a  mere  dictum  of  the  court ;  and  giving  it  every 
reasonable  force  as  authority,  it  proceeds  on  the  supposition  that  such 
arbitrary  acts  are  bona  fide  done,  and  are  not  mere  pretexts  to  cover 
an  illegal  seizure. 

The  second  question  is,  whether,  assuming  the  other  facts  to  be  as 
stated   and  alleged  above,    and  taking   the  authority    of    the    seizing 


772  BELLIGERENTS    AND   NEUTRALS.  [PART  IT. 

vessel  to  be  such  as  the  plaintiffs  allege  (that  is  to  say,  of  an  armed 
vessel  fitted  out  and  commissioned  at  Callao  by  Rodil),  there  was  a 
legal  and  justifiable  cause  for  the  seizure  of  the  General  Cari'ington 
and  her  cargo.  The  third  is  precisely  the  same  in  terms,  except  taking 
the  authority  of  the  armed  vessel  to  be  such  as  the  defendants  allege 
(that  is  to  say,  to  be  an  armed  vessel  sailing  under  the  royal  Spanish 
flag,  and  acting  by  the  royal  authority  of  Spain). 

Both  these  questions  present  the  same  general  point,  whether  there 
was,  under  the  circumstances  of  the  case,  a  legal  and  justifiable  cause 
for  the  seizure  and  detention  of  the  ship  and  her  cargo.  The  facts 
material  to  be  taken  into  consideration  in  ascertaining  this  point  are, 
that  the  ship,  when  seized,  had  not  landed  all  her  outward  cargo,  but 
was  still  in  the  progress  of  the  outward  voyage  originally  designated 
by  the  owners ;  that  she  sailed  on  that  voyage  from  Providence  with 
contraband  articles  on  board,  belonging,  with  the  other  parts  of  the 
cargo,  to  the  owners  of  the  ship;  with  a  false  destination  and  false 
papers,  which  yet  accompanied  the  vessel ;  that  the  contraband  articles 
had  been  landed  before  the  policy,  which  is  a  policy  on  time,  designat- 
ing no  particular  voyage,  had  attached  ;  that  the  underwriters,  though 
taking  no  risks  within  the  exception,  were  not  ignorant  of  the  nature 
and  objects  of  the  voyage  ;  and  that  the  alleged  cause  of  the  seizure 
and  detention  was  the  trade  in  articles  contraband  of  war  by  the 
landing  of  the  powder  and  muskets  already  mentioned. 

If  by  the  principles  of  the  law  of  nations  there  existed  under  these 
circumstances  a  right  to  seize  and  detain  the  ship  and  her  remaining 
cargo,  and  to  subject  them  to  adjudication  for  a  supposed  forfeiture, 
notwithstanding  the  prior  deposit  of  the  contraband  goods ;  then  the 
questions  must  be  answered  in  the  affirmative,  that  there  Avas  a  legal 
and  justifiable  cause. 

According  to  the  modern  law  of  nations,  for  there  has  been  some 
relaxation  in  practice  from  the  strictness  of  the  ancient  rules,  the 
carriage  of  .contraband  goods  to  the  enemy  subjects  them,  if  captured, 
in  delicto,  to  the  penalty  of  confiscation ;  but  the  vessel  and  the 
remaining  cargo,  if  they  do  not  belong  to  the  owner  of  the  contraband 
goods,  are  not  subject  to  the  same  penalty.  The  penalty  is  applied  to 
the  latter  only  when  there  has  been  some  actual  co-operation  on  their 
part  in  a  meditated  fraud  upon  the  belligerents ;  by  covering  up  the 
voyage  under  false  papers  and  with  a  false  destination.  This  is 
the  general  doctrine  when  the  capture  is  made  in  transitu,  while  the 
contraband  goods  are  yet  on  board.  But  when  the  contraband  goods 
have  been  deposited  at  the  port  of  destination,  and  the  subsequent 
voyage  has  thus  been  disconnected  with  the  noxious  articles,  it  has 
not  been  usual  to  apply  the  penalty  to  the  ship   or  cargo   upon  the 


CHAP.  III.]       CAREINGTON   V.   THE   MERCHANTS'   INS.    CO.  773 

return  voyage,  although  the  latter  may  be  the  proceeds  of  the  contra- 
band. And  the  same  rule  would  seem  by  analogy  to  apply  to  cases 
where  the  contraband  articles  have  been  deposited  at  an  intermediate 
port  on  the  outward  voyage,  and  before  it  had  terminated  ;  although 
there  is  not  any  authority  directly  in  point.  But  in  the  highest  prize 
courts  of  England,  while  the  distinction  between  the  outward  and 
homeward  voyage  is  admitted  to  govern,  yet  it  is  established  that  it 
exists  only  in  favor  of  neutrals  who  conduct  themselves  with  fairness 
and  good  faith  in  the  arrangements  of  the  voyage.  If,  with  a  view  to 
practice  a  fraud  upon  the  belligerent,  and  to  escape  from  his  acknow- 
ledged right  of  capture  and  detention,  the  voyage  is  disguised,  and  the 
vessel  sails  under  false  papers,  and  with  a  false  destination,  the  mere 
deposit  of  the  contraband  in  the  course  of  the  voyage  is  not  allowed 
to  purge  away  the  guilt  of  the  fraudulent  conduct  of  the  neutral. 
In  the  case  of  The  Frcmklln^in  1801,  3  Rob.  217,  Lord  Stowell  said, 
"I  have  deliberated  upon  this  case  and  desire  it  to  be  considered  as 
the  settled  rule  of  law  received  by  this  court,  that  the  carriage  of 
contraband  with  a  false  destination  will  make  a  condemnation  of  the 
ship,  as  well  as  the  cargo."  Shortly  afterwards,  in  the  case  of  The 
Neutralitet,  1801,  3  Rob.  R.  295,  he  added,  "The  modern  rule  of 
the  law  of  nations  is,  certainly,  that  the  ship  shall  not  be  subject  to 
condemnation  for  carrying  contraband  goods.  The  ancient  practice 
was  otherwise ;  and  it  cannot  be  denied  that  it  was  perfectly  justifiable 
in  principle.  If  to  supply  the  enemy  with  such  articles  is  a  noxious 
act  with  respect  to  the  owner  of  the  cargo,  the  vehicle  Avhich  is 
instrumental  in  affecting  that  illegal  purpose  cannot  be  innocent. 
The  policy  of  modern  times  has,  however,  introduced  a  relaxation  on 
this  point;  and  the  general  rule  now  is,  that  the  vessel  does  not 
become  confiscated  for  that  act.  But  this  rule  is  liable  to  exceptions. 
Where  a  ship  belongs  to  the  owner  of  the  cargo,  or  where  the  ship  is 
going  on  such  service  under  a  false  destination  or  false  papers  ;  these 
circumstances  of  aggravation  have  been  held  to  constitute  excepted 
cases  out  of  the  modern  rule,  and  to  continue  them  under  the  ancient 
rule."  The  cases  in  which  this  language  was  used  were  cases  of 
capture  upon  the  outward  voyage.  See  also  The  Edward,  4  Rob.  R. 
68.  The  same  doctrine  was  afterwards  held  by  the  same  learned  judge 
to  apply  to  cases  where  the  vessel  had  sailed  with  false  papers,  and  a 
false  destination  upon  the  outward  voyage,  and  was  captured  on  the 
return  voyage.  See  The  Nancy,  3  Rob.  122  ;  The  Chrisfiariberrj,  6  Rob. 
376.  And  finally  in  the  cases  of  The  Eosalie  and  The  Elizabeth^  in 
1802,  4  Rob.  R.,  note  to  table  of  cases,  the  lords  of  appeal  in  prize 
cases  held  that  the  carriage  of  contraband  outward  with  false  papers 
will  affect  the  return  cargo  with  condemnation.     These  cases  are  not 


774  BELLIGERENTS   AND   NEUTRALS.  [PART  II. 

reported  at  large.  But  in  the  case  of  The  Baltic,  1  Acton's  R.  25, 
and  that  of  Tlie  Margaret,  1  Acton's  E,.  333,  the  lords  of  appeal 
deliberately  reaffirmed  the  same  doctrine.  In  the  latter  case  Sir 
William  Grant,  in  pronouncing  the  judgment  of  tlie  courts  said,  "The 
principle  upon  which  this  and  other  prize  courts  have  generally 
proceeded  to  adjudication  in  cases  of  this  nature  (that  is,  where  there 
are  false  papers),  appears  simply  to  be  this  :  that  if  a  vessel  carried 
contraband  on  the  outward  voyage  she  is  liable  to  condemnation  on 
the  homeward  voyage.  It  is  by  no  means  necessary  that  the  cargo 
should  have  been  purchased  by  the  proceeds  of  this  contraband. 
Hence  we  must  pronounce  against  tliis  appeal ;  the  sentence  (of 
condemnation)  of  the  court  below  being  perfectly  valid  and  consistent 
with  the  acknowledged  principles  of  general  law." 

We  cannot  but  consider  these  decisions  as  very  high  evidence  of  the 
law  of  nations,  as  actually  administered;  and  in  their  actual  application 
to  the  circumstances  of  the  present  case,  they  are  not,  in  our  judg- 
ment, controlled  by  any  opposing  authority.  Upon  principle,  too,  we 
trust,  that  there  is  great  soundness  in  the  docti-ine,  as  a  reasonable 
interpretation  of  the  law  of  nations.  The  belligerent  has  a  right  to 
require  a  frank  and  bona  fide  conduct  on  the  part  of  neutrals  in  the 
course  of  their  commerce  in  times  of  war;  and  if  the  latter  will 
make  use  of  fraud,  and  false  papers,  to  elude  the  just  rights  of  the 
belligerents,  and  to  cloak  their  own  illegal  purposes,  there  is  no 
injustice  in  applying  to  them  the  penalty  of  confiscation.  The  taint 
of  the  fraud  travels  with  the  party  and  his  offending  instrument 
during  the  whole  course  of  the  voyage,  and  until  the  enterprise  has, 
in  the  understanding  of  the  party  himself,  completely  terminated. 
There  are  many  analogous  cases  in  the  prize  law  where  fraud  is 
followed  by  similar  penalties.  Thus,  if  a  neutral  will  cover  up 
enemy's  property  under  false  papers,  which  also  cover  his  own 
property,  prize  courts  will  not  disentangle  the  one  from  the  other, 
but  condemn  the  whole  as  good  prize.  That  doctrine  was  solemnly 
affirmed  in  this  court  in  the  case  of  The  St,  Nicholas,  1  Wheaton,  417,  3 
Cond.  Rep.  614. 

Upon  the  whole,  our  opinion  is,  that  the  general  question  involved 
in  the  second  and  third  questions,  whether  there  was  a  legal  and 
justifiable  cause  of  capture  under  tlie  circumstances  of  the  present 
case,  ought  to  be  answered  in  the  affirmative.  The  question  as  to  the 
authority  of  the  cruiser  to  seize,  so  far  as  it  depends  upon  her  com- 
mission, can  only  be  answered  in  a  general  Avay.  If  she  had  a 
commission  under  the  royal  authority  of  Spain,  she  Avas  beyond 
question  entitled  to  make  the  seizure.  If  Rodil  had  due  authority  to 
grant  the  commission  the  same  result  would  arise.     If  he  had  no  such 


CHAP.  III.]      CAERINGTON   V.   THE   MERCHANTS'    INS.    CO.  775 

authority,  then  she  must  be  treated  as  a  non-commissioned  cruiser, 
entitled  to  seize  for  the  benefit  of  the  Crown;  whose  acts,  if  adopted 
and  acknowledged  by  the  Crown  or  its  competent  authorities,  become 
equally  binding.  Nothing  is  better  settled  both  in  England  and  I 
America  than  tlie  doctrine  that  a  non-commissioned  cruiser  may 
seize  for  the  benefit  of  the  government ;  and  if  his  acts  are  adopted 
by  the  government,  the  property,  when  condemned,  becomes  a  droit  of 
the  government.  The  AmiahJe  Isabella,  6  Wheat.  Rep.  1,  5  Cond. 
Eep.  1 ;  The  Dos  Hermanos,  10  Wheat.  Rep.  306,  6  Cond.  Rep.  109 ; 
The  Melomane,  5  Rob.  41  ;  The  Elsehe,  5  Rob.  174 ;  The  Maria 
Frangoise,  6  Rob.  282. 

The  sixth  and  last  question  is  whether,  supposing  the  ship  to  have 
traded  in  articles  contraband  of  war  in  the  ports  of  Chili,  and  to  have 
been  seized  afterwards  in  a  port  of  Peru,  then  under  the  royal  authority, 
before  she  had  discharged  her  outward  cargo  for  and  on  account  of 
such  contraband  trade,  the  underwriters  be  not  discharged,  whether  the 
subsequent  proceedings  for  her  adjudication  were  regular  or  irregular. 
This  question  is  understood  to  raise  the  point  whether,  if  the  seizure 
and  detention  be  bona  fide  for  and  on  account  of  illicit  or  contraband 
trade,  a  sentence  of  condemnation  or  acquittal,  or  other  regular 
proceedings  to  adjudication,  are  necessary  to  discharge  the  under- 
writers. We  are  of  opinion  that  they  are  not.  If  the  seizure  or 
detention  be  lawfully  made  for  or  on  account  of  illicit  or  contraband 
trade,  all  charges,  damages,  and  losses  consequent  thereon,  are  within 
the  scope  of  the  exception.  They  are  properly  attributable  to  such 
seizure  and  detention  as  the  primary  cause,  and  relate  back  thereto. 
If  the  underwriters  be  discharged  from  the  primary  hostile  act,  tliey 
are  discharged  from  the  consequences  of  it.  The  whole  reasoning  in 
Church  V.  Hubbard,  2  Cra.uch,  187,  presupposes  that  if  the  underwriters 
be  exempted  from  the  risk  of  a  justifiable  seizure  for  illicit  trade,  they 
are  not  accountable  for  losses  consequent  thereon,  whether  arising 
from  a  sentence  of  condemnation  or  otherwise.^ 

1  Tliis  consequence  does  not  attacli  unless  false  papers  have  been  used.  "  Tlie 
doctrine  of  tliese  cases  is  not  approved  of  bj'  Wheaton  or  by  foreijjn  jurists  ;  and, 
wliile  undoubteilly  severe,  it  does  not  appear  to  be  a  necessary  deduction  from  the 
general  principles  governing  the  forfeiture  of  contraband  cargoes."  Hall,  Int.  Law, 
p.  696.     But  see  1  Duer,  Marine  Ins.,  627,  note  c. 

In  The  Sarah  Christiana,  1799,  1  C.  Rob.  238,241,  Sir  Wm.  Scott  said:  "In  the 
practice  of  this  court  there  is  a  relaxation  of  these  articles  (pitch  and  tar),  hei/ii/  the 
produce  of  the  claimant's  country;  and  it  has  been  deemed  a  harsh  exercise  of  a  belliger- 
ent right  to  prohibit  the  carriage  of  these  articles,  which  constitute  so  considerable  a 
part  of  its  native  produce  and  ordinary  commerce.  But  in  the  same  practice  this  re- 
laxation is  understood  with  a  condition,  that  it  may  be  brought  in,  not  for  confiscation, 
but  for  pre-emption  ;  no  unfair  compromise,  as  it  should  seem,  between  the  belligerent's 
rights,  founded  on   the  necessities  of  self-defence,  and  the  claims  of  the  neutral   to 


776  BELLIGERENTS   AND   NEUTRALS.  [PART  II. 

THE    "IMINA." 
High  Court  of  Admiralty,  1800. 

(3  C.  Robinson,  138.) 

This  was  a  case  of  a  cargo  of  ship  timber  which  had  sailed  July, 
1798,  from  Dantzick,  originally  for  Amsterdam,  but,  was  going  at  the 
time  of  capture  to  Embden,  in  consequence  of  information  of  the 
blockade  of  Amsterdam. 

Judgment.  —  Sir  W.  Scott  :  —  This  is  a  claim  for  a  ship  taken,  as  it 
is  admitted,  at  the  time  of  capture  sailing  for  Embden,  a  neutral  port; 
a  destination  on  which,  if  it  is  considered  as  the  real  destination,  no 
question  of  contraband  could  arise ;  inasmuch  as  goods  going  to  a 
neutral  port  cannot  come  under  the  description  of  contraband,  all 
goods  going  there  being  equally  lawful.  It  is  contended,  however, 
that  they  are  of  such  a  nature  as  to  become  contraband  if  taken  on  a 
destination  to  a  hostile  port.  On  this  point,  some  difference  of  opin- 
ion seems  to  have  been  entertained;  and  the  papers  which  are  brought 
in  may  be  said  to  leave  this  important  fact  in  some  doubt.     Taking  it, 

ex[)ort  his  native  commodities  tliough  immediately  subservient  to  tlie  purposes  of 
hostility.  To  entitle  the  party  to  the  benefit  of  this  rule  a  perfect  honajides  on  his  part 
is  required." 

On  I'he  Ilaabet,  1800,  2  C.  Rob.  175  at  p.  182,  the  same  eminent  judge  said  :  '•  It  is  a 
mitigated  e.xercise  of  war  on  which  any  purchase  is  made,  and  no  rule  has  established, 
tliat  such  a  purchase  shall  be  regulated  exactly  upon  the  same  terms  of  profit  which 
would  have  followed  the  adventure,  if  no  such  exercise  of  war  liad  intervened  ;  it  is  a 
reasonable  indemnification  and  a  fair  profit  on  the  commodity  that  is  due,  reference 
being  had  to  the  original  price  acta  illy  paid  by  the  exporter,  and  the  expenses  which 
lie  has  incurred.  *  *  *  But  certainly  the  capturing  nation  does  not  always  take  these 
cargoes  on  the  same  terms  on  which  an  enemy  would  be  content  to  purchase  them; 
much  less  are  cases  of  this  kind  to  be  considered  as  cases  of  costs  and  damages,  in 
which  all  loss  of  possible  profit  is  to  be  laid  upon  unjust  captors,  for  these  are  unjust 
captures,  but  authorized  exercises  of  the  right  of  war."  See  further.  The  Staat 
Emhdeit,  1798,  1  C.  Rob.  27  ;  The  Ringende  Jacob,  1798,  1  C  Rob.  89  ;  The  Maria,  1799, 
1  C.  Rob.  340;  The  Apollo,  1802,  4  C.  Rob.  159;  The  Christina  Maria,  1802,  4  C.  Rob. 
166  ;  The  Twee  Juffroiven,  1802,  4  C.  Rob.  242;  The  Evert,  1803,  4  C.  Rob.  354. 

"In  strictness,"  says  Hall  (Int.  Law,  690-691),  "every  article  which  is  either 
necessarily  contraband,  or  which  has  become  so  from  the  special  circumstances  of  the 
war,  is  liable  to  confiscation ;  but  it  is  usual  for  those  nations  who  vary  their  list  of 
contraband  to  subject  the  latter  class  to  pre-emption  only,  which  by  the  English 
practice  means  purchase  of  the  merchandise  at  its  mercantile  value,  together  with  a 
reasonable  profit,  usually  calculated  at  ten  per  cent  on  the  amount.  This  mitigation  of 
extreme  belligerent  privilege  is  also  introduced  in  the  case  of  products  native  to  the 
exporting  country,  even  when  they  are  aflTected  by  an  inseparable  taint  of  contraband." 
—  Ed. 


CHAP.  III.]  THE   "IMINA."  777 

however,  that  they  are  of  such  a  nature  as  to  be  liable  to  be  considered 
as  contraband  on  a  hostile  distination,  I  cannot  fix  that  character  on 
them  in  the  present  voyage.  The  rule  respecting  contraband,  as  I 
have  always  understood  it,  is  that  the  articles  must  be  taken  in  delicto, 
in  the  actual  prosecution  of  the  voyage  to  an  enemy's  port.  Under 
the  present  understanding  of  the  law  of  nations,  you  cannot  generally 
take  the  proceeds  in  the  return  voyage.  From  the  moment  of  quitting 
port  on  a  hostile  destination,  indeed,  the  offence  is  complete,  and  it  is 
not  necessary  to  wait  till  the  goods  are  actually  endeavoring  to  enter 
the  enemy's  port ;  but  beyond  that,  if  the  goods  are  not  taken  i?i 
delicto,  and  in  the  actual  prosecution  of  such  a  voyage,  the  penalty  is 
not  now  generally  held  to  attach. 

Some  argument  has  been  drawn  in  this  case  from  the  conduct  of 
the  owners.  It  is  said,  "  That  they  did  not  consider  these  articles 
as  contraband  ;  they  were  sent  openly  and  without  suppression  or 
disguise ;  "  perhaps  that  alone  would  not  avail  them.  It  appears, 
however,  that  Amsterdam  was  declared  by  this  country  to  be  in  a 
state  of  blockade,  a  circumstance  that  would  make  it  peculiarly  crim- 
inal to  attempt  to  carry  a  cargo  of  this  nature  to  that  port.  The 
master  receives  information  of  this  fact  at  Elsineur,  and  on  consulta- 
tion with  the  consul  of  the  nation  to  which  the  cargo  belonged, 
changed  his  purpose,  and  actually  shaped  his  course  for  Embden,  to 
which  place  he  was  sailing  at  the  time  of  capture.  I  must  ask  then, 
was  this  property  taken  under  such  circumstances  as  make  it  subject 
to  the  penalty  of  contraband  ?  Was  it  taken  in  delicto,  in  the  pi'os- 
ecution  of  an  intention  of  landing  it  at  a  hostile  part  ?  Clearly  not. 
But  it  is  said,  that  in  the  understanding  and  intention  of  the  owner  it 
was  going  to  a  hostile  port;  and  that  the  intention  on  his  part  was 
complete,  from  the  moment  when  the  ship  sailed  on  that  destination ; 
had  it  been  taken  at  any  period  previous  to  the  actual  variation,  there 
could  be  no  question  but  that  this  intention  would  have  been  sufficient 
to  subject  the  propert}^  to  confiscation;  but  when  the  variation  had  ac- 
tually taken  place,  however  arising,  the  fact  no  longer  existed.  There 
is  no  corpus  delicti  existing  at  the  time  of  capture.  In  this  point  of 
view  I  think  the  case  is  very  distinguishable  from  some  other  cases  in 
which,  on  the  subject  of  deviation  by  the  master  into  a  blockaded  port, 
the  court  did  not  hold  the  cargo  to  be  necessarily  involved  in  the  con- 
sequences of  that  act.  It  is  argued  that  as  the  criminal  deviation  of 
the  master  did  not  there  immediately  implicate  the  cargo ;  so  here 
the  favorable  alteration  cannot  protect  it,  and  that  the  offence  must 
in  both  instances  be  judged  by  the  act  and  designs  of  the  owner.  But 
in  those  cases  there  was  the  guilty  act,  really  existing  at  the  time  of 
capture  ;  both  the  ship  and  cai'go  were  taken  i?i  delicto  ;  and  the  only 


778  BELLIGERENTS    AND   NEUTRALS.  [PART  II. 

question  was  to  whom  the  delictum  was  to  be  imputed ;  if  it  was 
merely  the  offeuce  of  the  master,  it  might  bind  the  owner  of  the  ship, 
whose  agent  he  was ;  but  the  court  held  that  it  would  be  hard  to  bind 
the  owners  of  the  cargo  by  acts  of  the  master,  who  is  not  de  jure  their 
agent,  unless  so  specially  constituted  by  them.  In  the  present  in- 
stance, there  is  no  existing  delictum.  In  those  cases  the  criminal 
appearance,  which  did  exist,  was  purged  away  by  considering  the 
owners  of  the  cargo  not  to  be  necessarily  responsible  for  the  act  of 
the  master  ;  but  here  there  is  nothing  requiring  any  explanation :  The 
cargo  is  taken  on  a  voyage  to  a  neutral  port.  To  say  that  it  is  never- 
theless exposed  to  condemnation  on  account  of  the  original  destina- 
tion, as  it  stood  in  the  mind  of  the  owners,  would  be  carrying  the 
penalty  of  contraband  further  than  it  has  been  ever  carried  by  this  or 
the  Superior  Court.  If  the  capture  had  been  made  a  day  before,  that 
is, before  the  alteration  of  the  course,  it  might  have  been  different;  but 
however  the  variation  has  happened,  I  am  disposed  to  hold  that  the 
parties  are  entitled  to  the  benefit  of  it ;  and  that  under  that  variation 
the  question  of  contraband  does  not  at  all  arise.  I  shall  decree  resti- 
tution ;  but  as  it  was  absolutely  incumbent  on  the  captors  to  bring  the 
cause  to  adjudication  from  the  circumstance  of  the  apparent  original 
destination,  I  think  they  are  fairly  entitled  to  their  expenses. 

Restitution.     Captor's  expenses  decreed.^ 


SETON   V.    LOW. 
Supreme  Court  of  New  York,  1799. 

(1  Johnson  s  Cases,  1.) 

This  was  an  action  on  a  policy  of  insurance,  which  included  "  all 
kinds  of  lawful  goods  and  merchandises  "  on  board  the  Hannah,  &c. 

The  ship  having  been  captured  and  a  part  of  the  goods  condemned  as 
contraband,  the  defendants  refused  to  pay  the  insurance,  on  the  ground 
that  the  plaintiffs  had  not  informed  them  of  the  nature  of  the  cargo.- 

Kent,  J. :  —  "  Two  question  were  raised  on  the  argument  in  this  case. 

"1.  Whether  the  contraband  goods  were  lawful,  within  the  meaning 
of  the  policy. 

''2.  If  lawful,  whether  the  assured  were  bound  to  disclose  to  the 
defendant  the  fact,  that  part  of  the  cargo  was  contraband  of  war. 

1  See  The  Trende  Sostre,  1800,  cited  in  The  Lisette,  6  C.  Rob.  390  n.,  in  wliicli  the 
same  principle  is  held  applicable  to  contraband.  —  Ed. 

2  Short  statement  substituted  for  that  of  the  reporter  and  only  a  brief  extract  from 
the  opinion  is  given.  —  Ed. 


CHAr.  III.]  SETO]S    V.   LOW.  779 

"  On  the  first  point,  I  am  of  opinion,  that  the  contraband  goods 
were  lawful  goods,  and  that  whatever  is  not  prohibited  to  be  ex- 
ported, by  the  positive  law  of  the  country,  is  lawful.  It  may  be 
said,  that  the  law  of  nations  is  part  of  the  municipal  law  of  the  land, 
and  that  by  that  law  (and  which,  so  far  as  it  concerns  the  present 
question,  is  expressly  incorporated  into  our  treaty  of  commerce  with 
Great  Britain)  contraband  trade  is  prohibited  to  neutrals,  and,  con- 
sequently, unlawful.  This  reasoning  is  not  destitute  of  force,  but  the 
fact  is,  that  the  law  of  nations  does  not  declare  the  trade  to  be  unlawful. 
It  only  authorizes  the  seizure  of  the  contraband  articles  by  the  bel- 
ligerent powers ;  and  this  it  does  from  necessity.  A  neutral  nation 
has  nothing  to  do  with  the  war,  and  is  under  no  moral  obligation  to 
abandon  or  abridge  its  trade ;  and  yet,  at  the  same  time,  from  the 
Jaw  of  necessity,  as  Vattel  observes,  the  p)Owers  at  war  have  a  right 
to  seize  and  confiscate  the  contraband  goods,  and  this  they  may  do 
from  the  principle  of  self-defence.  The  right  of  the  hostile  power 
to  seize,  this  same  very  moral  and  correct  writer  continues  to  ob- 
serve, does  not  destroy  the  right  of  the  neutral  to  transport.  They 
are  rights  which  may,  at  times,  reciprocally  clash  and  injure  each 
other.  But  this  collision  is  the  effect  of  inevitable  necessity,  and 
the  neutral  has  no  just  cause  to  complain.  A  trade  by  a  neutral  in 
articles  contraband  of  war  is,  therefore,  a  lawful  trade,  though  a 
trade,  from  necessity,  subject  to  inconvenience  and  loss."  ^ 

^  In  Ex  parte  Chavasse,  in  Re  Grazehrook,  1865,  34,  L.  J.  K.  s.,  Bankruptcj',  17, 
Chavasse  and  Grazebrook  went  into  partnership  in  tlie  furnishing  of  contraband  arti- 
cles to  the  Confederacy.  Both  parties  became  bankriii)t,  and  the  assignees  of  Chavasse 
presented  a  petition  to  have  the  proceeds  of  tliese  transactions  apportioned,  Cliavasse 
never  liaving  received  anything  from  them.  Tliis  petition  was  dismissed  with  costs 
on  the  ground  of  the  illegahty  of  tlie  contract.  An  appeal  was  allowed,  Lord  Chan- 
cellor Westbury  considering  that  there  was  a  valid  partnersliip.  He  cites  the  Santis- 
sima  Trinidtid,  7  Wheat.  340,  ante,  and  quotes  the  following  passage  as  a  very  correct 
representation  of  the  present  state  of  the  law  of  England  :  —  "  There  is  nothing  in  our 
laws,  or  in  the  law  of  nations,  that  forbids  our  citizens  from  sending  armed  vessels 
as  well  as  munitions  of  war  to  foreign  ports  for  sale.  It  is  a  commercial  adventure 
wiiich  no  nation  is  bound  to  prohibit,  and  which  only  exposes  the  persons  engaged  in 
it  to  the  penalty  of  confiscation." 

He  further  said  :  "  But  this  commerce,  which  was  perfectly  lawful  for  the  neutral 
with  either  belligerent  country  before  tlie  war,  is  not  made  by  the  war  unlawful  or 
capable  of  being  prohibited  by  both  or  either  of  the  belligerents;  and  all  that  inter- 
national law  does  is  to  subject  tiie  neutral  merchant  who  transports  the  contraband 
of  war  to  the  risk  of  having  his  ship  and  cargo  captured  and  condemned  by  the  bellig- 
erent power  for  whose  enemy  the  contraband  is  destined." 

See  also  The  Helen,  1855,  L.  R.,  I  Adm.  &  Ecc.  1,  infra,  821. 

"The  carrier  of  contraband  may  violate  the  proclamation  of  the  neutral  state  of 
which  he  is  a  member  and  deprive  himself  of  the  right  to  protection  from  iier,  but  tiie 
punisinnent  of  iiis  offence  is,  by  the  general  law  of  nations,  left  to  the  belligerent  who 


'80  BELLIGERENTS   AND   NEUTRALS.  [PAKT  II. 


Section  43.  —  Despatcbes  and  Persons  as  Contraband. 


THE   "ATALANTA." 
High  Court  of  Admiralty,  1808. 

(6  C.  Robinson,  440.) 

This  was  a  case  of  a  Bremen  ship  and  cargo,  captured  on  a 
voyage  from  Batavia  to  Bremen,  on  the  14th  of  July,  1797,  having 
come  last  from  the  Isle  of  France ;  where  a  packet  containing  dis- 
patches from  the  Government  of  the  Isle  of  France  to  the  Minister 
of  Marine,  at  Paris,  was  taken  on  board  by  the  master  and  one  of 
the  supercargoes,  and  was  afterwards  found  concealed  in  the  pos- 
session of  the  second  supercargo,  under  circumstances  detailed  in  the 
judgment. 

Extract  from  judgment, — Sir  W.  Scott  : — 

"The  question  then  is,  what  are  the  legal  consequences  attaching 
on  such  a  criminal  act  ? — for  that  it  is  criminal  and  most  noxious  is 
scarcely  denied.  What  might  be  the  consequences  of  a  simple  trans- 
mission of  dispatches,  I  am  not  called  upon  by  the  necessities  of  the 
present  case  to  decide,  because  I  have  already  pronounced  this  to  be 
a  fraudulent  case.  That  the  simple  carrying  of  dispatches,  between 
the  colonies  and  the  mother  country  of  the  enemy,  is  a  service 
highly  injurious  to  the  other  Belligerent,  is  most  obvious.  In  the 
present  state  of  the  world,  in  the  hostilities  of  European,  powers,  it 
is  an  object  of  great  importance  to  preserve  the  connection  between 
the  mother  country  and  her  colonies ;  and  to  interrupt  that  connec- 
tion, on  the  part  of  the  other  Belligerent,  is  one  of  the  most  ener- 
getic operations  of  war.  The  importance  of 'keeping  up  that  connec- 
tion, for  the  concentration  of  troops,  and  for  various  military  pur- 
poses, is  manifest ;  and  I  may  add,  for  the  supply  of  civil  assistance, 
also,  and  support,  because  the  infliction  of  civil  distress,  for  the  pur- 
pose of  compelling  a  surrender,  forms  no  inconsiderable  part  of  the 
operations  of  war.     It  is  not  to  be  argued,  therefore,  that  the  im- 

lias  tlie  right  to  capture.  The  offence  is  not  cognizable  by  the  municipal  law  of  this 
country."    Sir  liobt.  Phillimore  in  The  International,  1871,  3  Adin.  &  Ecc.  321,  336. 

The  only  penalty  by  the  modern  law  of  nations  for  carrying  contraband  is  the  loss 
of  freight  and  expenses.  The  KinfjendeJarob,  1798,  1  C.  Rob.,  89;  The  Sarah  Christina, 
1799,  Id.  242,  and  others.     See  also  11  Op.  Atty.-Gen.  408,  410;  Id.  451. 

On  the  subject  of  contraband  geperally,  see  the  excellent  and  elaborate  digest-note 
to  The  Jonge  Margaretha  in  Tudor's  Mercantile  Cases,  3d  ed.,  986-1010.  —  Ed. 


CHAP.  III.]  THE   "  ATALANTA."  781 

porta  nee  of  these  dispatches  might  relate  only  to  the  civil  wants  of 
the  colony,  and  that  it  is  necessary  to  shew  a  military  tendency ; 
because. the  object  of  compelhng  a  surrender  being  a  measure  of 
war,  whatever  is  conducive  to  that  event  must  also  be  considered  in 
the  contemplation  of  law,  as  an  object  of  hostility,  although  not  pro- 
duced by  operations  strictly  military.  How  is  this  intercourse  with 
the  mother  country  kept  up,  in  time  of  peace  ?  by  ships  of  war  or 
by  packets  in  the  service  of  the  state.  If  a  war  intervenes  and  the 
other  Belligerent  prevails  to  interrupt  that  communication,  any  per- 
son stepping  in  to  lend  himself  to  effect  the  same  purpose,  under  the 
privilege  of  an  ostensible  neutral  character,  does,  in  fact,  place  him- 
self in  the  service  of  the  enemy-state,  and  is  justly  to  be  considered 
in  that  character.  Xor  let  it  be  supposed,  that  it  is  an  act  of  light 
and  casual  importance.  The  consequence  of  such  a  service  is  indefi- 
nite, intinitely  beyond  the  effect  of  any  contraband  that  can  be  con- 
veyed. The  carrying  of  two  or  three  cargoes  of  stores  is  necessarily 
an  assistance  of  a  limited  nature ;  but  in  the  transmission  of  dis- 
patches may  be  conveyed  the  entire  plan  of  a  campaign,  that  may  de- 
feat all  the  projects  of  the  other  Belligerent  in  that  quarter  of  the 
world.  It  is  true,  as  it  has  been  said,  that  one  ball  might  take  off  a 
Charles  the  Xllth,  and  might  produce  the  most  disastrous  effects  in 
a  campaign ;  but  that  is  a  consequence  so  remote  and  accidental, 
that  in  the  contemplation  of  human  events  it  is  a  sort  of  evanescent 
quantity  of  which  no  account  is  taken ;  and  the  practice  has  been 
accordingly^  that  it  is  in  considerable  quantities  only  that  the  offence 
of  contraband  is  contemplated.  The  case  of  dispatches  is  very  dif- 
ferent ;  it  is  impossible  to  limit  a  letter  to  so  small  a  size,  as  not  to 
be  capable  of  producing  the  most  important  consequences  in  the 
operations  of  the  enemy.  It  is  a  service,  therefore,  which,  in  what- 
ever degree  it  exists,  can  only  be  considered  in  one  character,  as  an 
act  of  the  most  noxio"us  and  hostile  nature. 

"  This  country,  which — however  much  its  practice  may  be  misrep- 
resented by  foreign  writers,  and  sometimes  by  our  own,  has  always 
administered  the  law  of  nations  with  lenity,  adopts  a  more  indulgent 
rule,  inflicting  on  the  ship  only  a  forfeiture  of  freight  in  ordinary 
cases  of  contraband.  But  the  offence  of  carrying  dispatches  is,  it 
has  been  observed,  greater.  To  talk  of  the  confiscation  of  the  nox- 
ious article,  the  dispatched^  which  constitutes  the  jDcnalty  in  contra- 
band, would  be  ridiculous.  There  would  be  no  freight  dependent  on 
it,  and  therefore  the  same  precise  penalty  cannot,  in  the  nature  of 
things,  be  applied.  It  becomes  absolutely  necessary,  as  well  as  just, 
to  resort  to  some  other  measure  of  confiscation,  which  can  be  no 
other  than  that  of  the  vehicle. 


782  BELLIGERENTS   AND   NEUTEALS.  [PART  II. 

"  Then  comes  the  other  question,  whether  the  penalty  is  not  also 
to  be  extended  further,  to  the  cargo,  being  the  property  of  tlie  same 
proprietors — not  merely  oh  continentiam  delicti,  but  likewise  be- 
cause the  representatives  of  the  owners  of  the  cargo,  are  directly  in- 
volved in  the  knowledge  and  conduct  of  this  guilty  transaction  ? 
On  the  circumstances  of  the  present  case  I  have  to  observe,  that  the 
offence  is  as  much  the  act  of  those  who  are  the  constituted  agents 
of  the  cargo,  as  of  the  master,  who  is  the  agent  of  the  ship.     The 

f  general  rule  of  law  is,  that,  Avhere  a  party  has  been  guilty  of  an  in. 
terposition  in  the  war,  and  is  taken  in  delicto,  he  is  not  entitled  to 

I  the  aid  of  the  court,  to  obtain  the  restitution  of  any  part  of  his 
property  involved  in  the  same  transaction.  It  is  said,  that  the  term., 
'interposition  in  the  war'  is  a  very  general  term  and  not  to  be 
loosel}'^  applied.  I  am  of  opinion,  that  this  is  an  aggravated  case  of 
active  interposition  in  the  service  of  the  enemy,  concerted  and  con- 
tinued in  fraud,  and  marked  with  every  species  of  malignant  con- 
duct. In  such  a  case  I  feel  myself  bound,  not  only  by  the  general 
rule,  oh  contineiitiam  delicti,  but  by  the  direct  participation  of  guilt 
in  the  agents  of  the  cargo.  Their  own  immediate  conduct  not  only 
excludes  all  favourable  distinction,  but  makes  them  pre-eminently  the 
object  of  just  punishment.  The  conclusion  therefore  is,  that  I  must 
pronounce  the  ship  and  cargo  subject  to  condemnation. 

"  The  court  observed  afterwards : — I  will  mention,  though  it  is  a  cir- 
cumstance of  no  great  consequence,  that  I  have  seen  the  dispatches 
in  this  case,  and  that  they  are  of  a  noxious  nattire,  stating  the 
strength  of  the  different  regiments,  <fcc.,  and  other  particulars  en- 
tirely military." 


THE    "RAPID." 
High  Court  of  Admujaltt,   LSIO. 

{Edu-mdx,  2-28.) 

This  was  the  case  of  an  American  ship  which  was  captured  on  her 
voyage  from  New  York  to  Tonningen,  on  suspicion  of  an  intention 
to  push  into  the  Texel.  But  the  question  of  destination  being 
abandoned  by  the  captors,  they  now  contended  that  the  case  came 
within  the  principle  laid  down  by  the  court  in  the  case  of  the  Atci- 
larda,  as  it  had  been  discovered,  that  among  the  papers  given  up  by 
tlie  master  at  the  time  of  capture,  there  was  a  dispatch  addressed  to 
the  Dutch  colonial  minister  at  the  Hague,  under  cover  to  a  commer- 
cial house  at  Tonningen. 


CHAP,  m.]  THE    "  RAPID."  783 

Judgment, — Sir  William  Scott  : — 

"  The  question  of  destination  being  disposed  of,  I  have  now  only 
to  consider  what  will  be  the  legal  effect  of  carrying  these  dis- 
patches ;  and  as  it  appears  that  the  practice  of  conveying  papers  of 
this  description,  for  the  enemy,  prevails  to  a  considerable  extent,  I 
must  take  occasion  to  remind  the  proprietors  of  neutral  vessels,  that 
wherever  it  is  indulged  without  sufficient  caution,  they  will  inevi- 
tably subject  themselves  to  very  grievous  inconveniences.  I  should 
certainly  be  extremely  unwilling  to  incur  the  imputation  of  im- 
posing any  restrictions  upon  the  correspondence  Avhich  neutral  na- 
tions are  entitled  to  maintain  with  the  enemy,  or,  as  it  was  sug- 
gested in  argument,  to  lay  down  a  rule  which  would  in  effect  deter 
masters  of  vessels  from  receiving  on  board  any  private  letters,  as 
they  cannot  know  what  tliey  may  contain.  But  it  must  be  under-  » 
stood,  that  where  a  party,  from  want  of  proper  caution,  suft'ers  dis-  i 
patches  to  be  conveyed  on  board  his  vessel,  the  plea  of  ignorance  I 
will  not  avail  him.  His  caution  must  be  j)roportioned  to  the  cir-  ! 
cumstances  under  which  such  papers  are  received.  If  he  is  taking 
his  departure  from  a  hostile  port  in  a  hostile  country,  and  still  more, 
if  the  letters  which  are  brought  to  him  are  addressed  to  persons 
resident  in  an  hostile  country,  he  is'  called  upon  to  exercise  the  ut- 
most jealousy  Avitli  regard  to  what  papers  he  takes  on  board.  On 
the  other  hand,  it  is  to  be  observed,  that  where  the  commencement 
of  the  voyage  is  in  a  neutral  country,  and  it  is  to  terminate  at  a 
neutral  port,  or,  as  in  this  mstance,  at  a  port  to  which,  though  not 
neutral,  an  open  trade  is  allowed,  in  such  a  case  there  is  less  to  ex- 
cite his  vigilance,  and,  therefore,  it  may  be  proper  to  make  some  al- 
lowance for  any  imposition  which  may  be  practiced  upon  him.  But 
when  a  neutral  master  receives  papers  on  board  in  a  hostile  port,  he 
receives  them  at  his  own  hazard  and  cannot  be  heard  to  aver  his 
ignorance  of  a  fact  which,  by  due  enquiry,  he  might  have  made  him- 
self acquainted  with.  The  party  in  the  present  case  has  the  benefit 
of  the  favourable  distinction  :  these  papers,  with  some  others,  were 
put  on  board  in  an  envelope,  addressed  to  a  person  at  Tonningen, 
wdio  was  instructed  to  forward  them  to  Holland,  but  of  this  the 
master  swears  he  knew  nothing.  They  turn  out  to  be  of  a  public- 
nature,  conveying  intelligence  of  importance  to  the  government 
of  the  enemy  at  the  Hague,  and  they  begin,  I  observe,  with  an  as- 
sertion which  I  hope  is  not  true.  The  writer  says :  '  The  letter  and 
accompanying  inclosures  which  I  this  day  dispatch  to  His  Excel- 
lency, the  minister  of  the  colonies,  via  Tonningen,  Mill,  I  expect,  be 
communicated  to  you.  I  trust  my  conduct  will  be  approved  of  by 
His  Excellency,  and  that  he  will  please  explain  himself,  both  with 


784  BELLIGERENTS   AND   NEUTRALS.  [PART  n. 

regard  thereto,  us  also  respecting  the  contents  of  my  letter  to  the 
Marshal  Daandels.  The  surest  mode  of  correspondence,  is  by  way 
of  England  or  Paris,  through  the  channel  of  the  Dutch  minister,  as 
the  American  minister  vrill  not  refuse  to  inclose  for  him  a  letter  to  me 
in.  his  dispatches.^  This,  I  hope,  is  rashly  and  injuriously  said  ;  the 
"court  cannot  bring  itself  to  believe,  that  the  accredited  minister  of  a 
country  in  amity  with  this  would  so  far  lend  himself  to  the  pur- 
poses of  the  enemy  as  to  be  the  private  instrument  of  conveying  the 
dispatches  of  the  enemy's  government  to  their  agent.  The  papers 
in  question  come  from  a  person  who  seems  to  be  iuA^ested  with 
something  of  a  public  character,  though  of  a  peculiar  kind,  and  they 
are  upon  public  business,  but  I  do  not  know  whether  they  come 
strictly  within  the  definition  of  dispatches.  The  writer  of  them  had 
been  sent  to  America  from  Batavia  by  the  governor,  to  beat  up  for 
volunteers  among  the  American  merchants,  in  the  hope  of  inducing 
them  to  embark  themselves  in  the  trade  of  that  settlement.  How 
far  he  had  been  acknowledged  by  the  American  government  does 
not  appear  ;  from  the  contents  of  the  papers  themselves  he  seems  to 
have  been  stationed  in  America,  not  by  the  government  of  Holland, 
but  by  the  Dutch  governor  of  Batavia,  rather  as  a  commercial  agent 
to  drive  a  bargain  with  individuals,  and  to  induce  them  to  join  in 
these  speculations  for  the  relief  of  the  Batavian  trade,  than  for  any 
purposes  of  a  more  diplomatic  nature.  His  commission  was  such 
that  it  might  exist  without  his  being  acknowledged  as  a  j^ublic  ac- 
credited minister  by  the  American  government,  and  therefore  tlie 
claimant  is,  perhaps,  entitled  to  the  benefit  of  the  distinction  which 
has  been  taken,  that  these  papers,  though  mischievous  in  their  own 
nature,  proceed  from  a  person  who  is  not  clothed  with  any  public 
official  character.  They  came  to  the  hands  of  this  American  master 
among  a  variety  of  other  letters  from  private  persons ;  they  were 
concealed  in  an  envelope,  addressed  to  a  private  person,  and  Avere 
taken  on  board  in  a  neutral  country;  these  are  circumstances  which 
would  rather  induce  the  court  to  consider  this  case  as  excepted  from 
the  general  rule  which  does  not  permit  a  neutral  master,  carrying 
dispatches  for  the  enemy,  to  shelter  himself  under  the  plea  of  ig- 
norance. In  the  present  instance  the  American  master  denies  all 
knowledge  of  the  contents  of  these  papers,  and  the  benefit  of  that 
denial  will  extend  to  the  cargo ;  it  is  not,  therefore,  a  case  in  which 
the  property  is  to  be  confiscated,  although  in  this,  as  in  every  other 
instance  in  which  the  enemy's  dispatches  are  found  on  board  a  ves- 
,  sel,  he  has  justly  subjected  himself  to  all  the  inconveniences  of 
I  seizure  and  detention  and  to  all  the  expenses  of  those  judicial  in- 
i  quiries  which  they  have  occasioned." 


CHAP.  III.]  THE  "OROZEMBO."  785 

THE   "MADISON." 

High  Court  of  Admikalty,  1810. 

(Edwards,  224.) 

Judgment.  —  Sir  Wm.   Scott  :  ^  — 

"Now  I  am  of  opinion,  that  a  communication  from  the  Danish 
Government  to  its  own  consul  in  America,  does  not  necessarily  im-  '' 
ply  anything  that  is  of  a  nature  hostile  or  injurious  to  the  interests  ' 
of  this  country.  It  is  not  to  be  so  presumed;  such  communica- 
tions must  be  supposed  to  have  reference  to  the  business  of  the  con- 
sul-general's office,  which  is  to  maintain  the  commercial  relations  of 
Denmark  with  America.  If  such  communications  were  interdicted 
the  functions  of  the  official  persons  would  cease  altogether.  *  *  * 

"A  Danish  consul-general  in  America  is  not  stationed  there 
merely  for  the  purpose  of  Danish  trade,  but  of  Danish-American 
trade;  his  functions  relate  to  the  joint  commerce  in  which  the  two 
countries  are  engaged,  and  the  case,  therefore,  falls  within  the  prin- 
ciple which  has  been  laid  down  in  the  case  of  the  Caroline  in  regard 
to  despatches  from  the  enemy  to  his  ambassador  resident  in  a  neu- 
tral country." 

THE   "OROZEMBO." 

High  Court  of  Admiralty,  1807. 

(6  C.  Robinson,  430.) 

This  was  a  case  of  an  American  vessel  that  had  been  ostensibly 
chartered  by  a  merchant  at  Lisbon  "  to  proceed  in  ballast  to  Macao, 
and  there  to  take  a  cargo  to  America,"  but  which  had  been  after- 
wards, by  his  directions,  fitted  up  for  the  reception  of  three  military 
officers  of  distinction  and  two  persons  in  civil  departments  in  the 
government  of  Batavia,  who  had  come  from  Holland  to  take  their 
passage  to  Batavia,  under  the  appointment  of  the  Government  of 
Holland. 

There  were  also  on  board  a  lady,  and  some  persons  in  the  capacity 
of  servants,  making  in  the  whole  seventeen  passengers. 

Judgment, — Sir  W.  Scott  :— 

"  This  is  the  case  of  an  admitted  American  vessel ;  but  the  title  to 

^   Facts  omitted  and  only  extracts  from  the  opinion  are  given.  —  Ed. 

50 


.786  BELLIGERENTS   AND   NEUTRALS.  [PART  IT. 

restitution  is  impugned,  on  the  ground  of  its  having  been  employed, 
at  the  time  of  tlie  capture,  in  the  service  of  tlie  enemy,  in  transport- 
ing military  persons  first  to  Macao  and  ultimately  to  Batavia.  That 
a  vessel  hired  by  the  enemy  for  the  conveyance  of  military  persons 
is  to  be  considered  as  a  transport  subject  .to  condemnation,  has  been 
in  a  recent  case  held  by  this  court,  and  on  other  occasions. 

""What  is  the  number  of  military  persons  that  shall  constitute 
such  a  case,  it  may  be  difiicult  to  define.  In  the  former  case  there 
were  many,  in  the  present  there  are  much  fewer  in  number ;  but  I 
accede  to  what  has  been  observed  in  argument,  that  number  alone  is 
an  insignificant  circumstance  in  the  considerations,  on  which  the 
principle  of  law  on  this  subject  is  built,  since  fewer  persons  of  high 
quality  and  character  may  be  of  more  importance,  than  a  much 
greater  number  of  persons  of  lower  condition.  To  send  out  one  vet- 
eran general  of  France  to  take  the  command  of  the  forces  at  Batavia, 
might  be  a  much  more  noxious  act  than  the  conveyance  of  a  whole 
regiment.  The  consequences  of  such  assistance  are  greater;  and 
therefore  it  is  what  the  belligerent  has  a  stronger  right  to  prevent 
and  punish.  In  this  instance  the  military  persons  are  three,  and 
there  are,  besides,  two  other  persons,  who  were  going  to  be  employed 
in  civil  capacities  in  the  government  of  Batavia.  Whether  the  prin- 
ciple would  apply  to  them  alone,  I  do  not  feel  it  necessary  to  deter- 
mine. I  am  not  aware  of  any  case  in  which  that  question  has  been 
agitated ;  but  it  appears  to  me,  on  principle,  to  be  but  reasonable 
that,  whenever  it  is  of  sufficient  importance  to  the  enemy  that  such 
persons  should  be  sent  out  on  the  public  service,  at  the  public  ex- 
pence,  it  should  afl:ord  equal  ground  of  forfeiture  against  the  vessel 
that  may  be  let  out  for  a  purpose  so  intimately  connected  with  the 
hostile  operations. 

"  It  has  been  argued,  that  the  master  was  ignorant  of  the  charac- 
ter of  the  service  on  which  he  was  engaged,  and  that,  in  order  to 
support  the  penalty,  it  would  be  necessary  that  there  should  be  some 
proof  of  delinquency  in  him,  or  his  owner.  But,  I  conceive,  that  is 
not  necessary  ;  it  will  be  sufficient  if  there  is  an  injury  arising  to  the 
belligerent  from  the  employment  in  which  the  vessel  is  found.  In 
the  case  of  the  Swedish  vessel  there  was  no  mens  rea  in  the  owner, 
or  in  any  other  person  acting  under  his  authority.  The  master  was 
an  involuntary  agent,  acting  under  compulsion,  put  upon  him  by  the 
officers  of  the  French  government,  and,  so  far  as  intention  alone  is 
considered,  perfectly  innocent.  In  the  same  manner,  in  cases  of  hona 
fide  ignorance,  there  may  be  no  actual  delinquency,  but  if  the  service 
is  injurious,  that  will  be  sufficient  to  give  the  belligerent  a  right  to 
prevent  the  thing  from  being  done,  or  at  least  repeated,  by  enforcing 


CHAP.  III.]  THE   "  OEOZEIMBO."  787 

the  penalty  of  confiscation.  If  imposition  has  been  practiced,  it 
operates  as  force;  and  if  redress  in  tlie  way  of  indemnification  is  to 
be  souglit  against  any  person,  it  must  be  against  those,  who  have,  by 
means  either  of  compulsion  or  deceit,  exposed  the  property  to  dan- 
ger. If,  therefore,  it  was  the  most  imiocent  case  on  the  part  of  the 
master,  if  there  was  nothing  whatever  to  affect  him  with  piivity,  the 
whole  amount  of  this  argument  would  be,  that  he  must  seek  his  re- 
dress against  the  freighter;  otherwise  such  opportunities  of  convey- 
ance would  be  constantly  used,  and  it  would  be  almost  impossible,  in 
the  greater  number  of  cases,  to  prove  the  knowledge,  and  privity  of 
the  immediate  offender. 

"  It  has  been  argued  throughout,  as  if  the  ignorance  of  the  master 
alone  would  be  sufficient  to  exempt  the  property  of  the  owner  from 
confiscation.  But  may  there  not  be  other  persons,  besides  the  mas- 
ter, whose  knowledge  and  privity  would  carry  with  it  the  same 
consequences  ? 

"  Suppose  the  owner  himself  had  knowledge  of  the  engagement, 
would  not  that  produce  the  mens  rea^  if  such  a  thing  is  necessary? 
or  if  those  who  had  been  employed  to  act  for  the  owner,  had  thought 
fit  to  engage  the  ship  in  a  service  of  this  nature,  keeping  the  master 
in  profound  ignorance,  would  it  not  be  just  as  effectual,  if  the  mens 
rea  is  necessary,  that  it  should  reside  in  those  persons,  as  in  the 
owner  ? 

"  The  observations  which  I  shall  have  occasion  to  make  on  the  re- 
maining parts  of  this  case  will,  perhaps,  appear  to  justify  such  a 
supposition,  either  that  the  owner  himself,  or  those  who  acted  for 
him  in  Lisbon  or  in  Holland,  were  connusant  of  the  nature  of  the 
whole  transaction.  But  I  will  first  state  distinctly,  that  the  prin- 
ciple on  which  I  determine  this  case  is,  that  the  carrying  military 
persons  to  the  colony  of  an  enemy,  who  are  there  to  take  on  them 
the  exercise  of  their  military  functions,  will  lead  to  condemnation, 
and  that  the  court  is  not  to  scan  with  minute  arithmetic  the  number 
of  persons  that  are  so  carried.  If  it  has  appeared  to  be  of  sufficient 
importance  to  the  government  of  the  enemy  to  send  them,  it  must 
be  enough  to  put  the  adverse  government  on  the  exercise  of  their 
right  of  prevention ;  and  the  ignorance  of  the  master  can  afford  no 
ground  of  exculpation  in  favour  of  the  owner,  who  must  seek  his 
remedy  in  cases  of  deception,  as  well  as  of  force,  agamst  those  who 
have  imposed  upon  him."  ^ 

1  See  tlie  cases  at  The  FriemUup,  1807,  6  C.  Rob.  420;  and  The  Caroline,  1802,  4  C. 
Rob.  250. 

In  Jill  these  cases  the  ofEence  is  rather  the  enjiagenient  of  the  vessel  as  an  enemy, 
transport  than  the  mere  carrying  of  hostile  persons  as  passengers. 


788  BELLIGERENTS   AND  NEUTRALS.  [PART  H. 

"THE  PANAMA." 
Supreme  Court  of  the  United  States,  1899. 

(176  United  States,  535.) 

At  the  time  of  the  breaking  out  of  the  recent  war  with  Spain,  a 
Spanish  mail  steamship  was  ou  a  voyage  from  New  York  to  Havana, 
carrying  a  general  cargo,  passengers,  and  mails,  and  having  mounted 
on  board  two  breech-loading  Hontoria  guns  of  nine  centimetre  bore, 
and  one  Maxim  rapid-tiring  gun,  and  having  also  on  board  twenty 
Remington  rifles  and  ten  Mauser  rifles,  with  ammunition  for  all  the 
guns  and  rifles,  and  thirty  or  forty  cutlasses.  Her  armament  had 
been  put  on  board  more  than  a  year  before,  for  her  own  defence,  as 
required  by  her  owner's  mail  contract  with  the  Spanish  Government, 
which  also  provided  that,  in  case  of  war,  that  government  might  take 

In  a  note  to  the  case  of  The  friendship.  Dr.  Robinson  says  :  "Tlie  act  of  carryini» 
tlie  soldiers  of  tlie  enemy  lias  been  in  former  wars  assinulateJ  to  contraband,  by 
public  proclamation  and  instructions,  and  iias  been  declared  to  render  tlie  ship  liable 
to  condemnation.  The  declaration  of  war,  25th  Marcli,  1744,  concludes  with  the 
following  clause : 

" '  And  we  do  hereby  command  our  own  subjects,  and  advertise  all  other  persons 
of  whatever  nation  soever,  not  to  transport  or  carry  any  soldiers,  arms,  powder,  am- 
munition, or  other  contraiiand  goods,  to  any  of  their  territories,  lands,  plantations,  or 
countries  of  the  said  i'rencii  King,  declaring,  that  whatsoever  ship  or  vessel  sliail  be 
met  withal  transporting  or  carrying  any  soldiers,  arms,  powder,  ammunition,  or  other 
contraband  goods,  etc.  *  *  *  ^  the  same  being  taken,  shall  be  condemned  as  good 
and  lawful  prize.' 

"  The  same  declaration  is  also  inserted  in  the  second  article  of  the  instruction  to 
cruisers,  of  the  same  date ;  also  in  the  second  article  of  the  instructions  in  the  war 
witli  Spain,  20th  Dec,  1768. 

"  In  the  celebrated  Trent  case,  occurring  in  1862,  Messrs.  Mason  and  Slidell  were 
removed  from  a  British  private  vessel  by  Commodore  Wilkes  of  the  San  Jacinto,  a 
public  vessel  of  the  United  States.  Great  Britain  insisted  that  the  rights  of  a  neutral 
vessel  not  only  had  been  violated,  for  which  she  demanded  apology,  but  she  insisted 
tiiat  those  persons  siiould  be  replaced  and  returned  on  board  a  British  ship.  This  was 
done,  and  tiiey  were  actually  j)lace<l  on  board  a  British  vessel  in  or  near  the  harbor  of 
Boston.  Tiiey  were  not  British  subjects,  and  tiieir  return  could  only  have  been  de- 
manded for  the  reason  that  they  had  been  torn  from  British  soil,  and  the  sanctity  of 
Britisli  soil,  as  representeil  by  a  British  ship,  had  been  violated.  Citizenship  or  resi- 
dence had  no  influence  ui)on  the  question."  Per  Mr.  Justice  Hunt  in  Crapo  v.  Kelley, 
1872,  16  Wall.  610,  <i81. 

It  may  be  said  that  Mr.  Seward,  at  that  time  Secretary  of  State,  admitted  that 
these  persons  could  not  lawfully  be  taken  from  the  Trent  at  sea,  but  contended  that  it 
micht  have  been  broiight-in  as  prize.  See  Lawrence's  Wheaton,  930;  Dana's  Wheaton, 
644;  3  Wharton's  Digest,  §§  325,  328,  329,  374;  Bernard,  Neutrality  of  (ireat  Britain, 
187-225.     For  a  conservative  British  view,  see  Hall,  Int.  Law,  705-708.  —  Ed. 


CHAP.  III.]  THE  "  PANAMA."  789 

possession  of  the  vessel  with  her  equipment,  increase  her  armament, 
and  use  her  as  a  war  vessel,  and,  in  these  and  other  provisions,  con- 
templated her  use  for  hostile  purposes  in  time  of  war.  From  the 
decree  of  the  District  Court  for  the  Southern  District  of  Florida, 
condemning  the  steamship,  an  appeal  was  taken  to  the  Supreme 
Court  of  the  United  States.^ 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court.^ 
The  recent  war  with  S[)ain,  as  declared  by  the  act  of  Congress  of 
April  25,  1898,  c.  189,  and  recognized  in  the  President's  proclamation 
of  April  26,  1898,  existed  on  and  after  April  21,  1898.  30  Stat.  364, 
1770.  This  proclamation  declared,  among  the  rules  on  which  the 
war  would  be  conducted,  tlie  following : 

"  4.  Spanish  merchant  vessels,  in  an}'  ports  or  places  within  the  United  States, 
shall  be  allowed  till  May  21,  1898,  inclusive,  for  loading  their  cargoes  and  departing 
frcni  such  ports  or  places;  and  sucii  Spanisii  merchant  vessels,  if  met  at  sea  by  an}'- 
United  States  ship,  shall  be  permitted  to  continue  their  voyage  if,  on  examination  of 
their  papers,  it  shall  appear  that  tlieir  cargoes  were  taken  on  board  before  the  expira- 
tion of  the  above  term  :  Provided,  that  nothing  herein  contained  shall  apply  to  Span- 
ish vessels  having  on  board  any  officer  in  tiie  military  or  naval  service  of  the  enemy, 
or  any  coal  (except  such  as  may  be  necessary  for  their  voyage),  or  any  other  article 
proliibiied  or  contraband  of  war,  or  any  despatch  of  or  to  tiie  Spanish  Government." 

"6.  The  right  of  searcli  is  to  he  exercised  with  strict  regard  for  the  rights  of  neu- 
trals, and  the  voyages  of  mail  steamers  are  not  to  be  interfered  with  except  on  the 
clearest  grounds  of  suspicion  of  a  violation  of  law  in  respect  of  contraband  or 
blockade." 

It  has  been  decided  by  this  court,  in  the  recent  case  of  The  Buena 
Ventura,  175  U.  S.  384,  that  a  Spanish  merchant  vessel,  which  had 
sailed  before  April  21,  1898,  from  a  port  of  the  United  States  on  a 
voyage  to  a  foreign  port,  not  having  on  board  any  officer  in  the  mili- 
tary or  naval  service  of  Spain,  nor  any  article  contraband  of  war,  nor 
any  despatch  of  or  to  the  Spanish  Government,  was  protected  by  the 
fourth  clause  of  the  President's  proclamation  of  April  26,  1898,  from 
condemnation  while  on  that  voyage ;  but  that  her  capture,  before 
that  proclamation  was  issued,  was  with  probable  cause  ;  and  that  she 
should  therefore  be  ordered  to  be  restored  to  her  owner,  but  without 
damages  or  costs. 

That  case  would  be  decisive  of  this  one,  but  for  the  mails  and  the 
arms  carried  by  the  Panama,,  and  the  contract  with  the  Spanish 
Government  under  which  the  arms  were  put  on  board. 

It  was  argued  in  behalf  of  the  claimant  that,  independently  of  her 
being  a  merchant  vessel,  she  was  exempt  from  capture  by  reason  of 

1  The  head-note  of  the  official  reporter  so  admirably  states  the  case  that  It  is  substi- 
tuted for  the  statement  of  the  court. —  Ed. 

2  Part  of  the  opinion  is  omitted.  —  Ed. 


790  BELLIGEKENTS  AND   NEUTRALS.  [PART  11. 

her  being  a  mail  steamship  and  actually  carrying  mail  of  the  United 
States. 

There  are  instances  in  modern  times,  in  which  two  nations,  by  con- 
vention between  themselves,  have  made  special  agreements  concerning 
the  mail  ships.  But  international  agreements  for  the  immunity  of 
the  mail  ships  of  the  contracting  parties  in  case  of  war  between  them 
have  never,  we  believe,  gone  farther  than  to  provide,  as  in  the  postal 
convention  between  the  United  States  and  Great  Britain  in  1848,  in 
that  between  Great  Britain  and  France  in  1833,  and  in  other  similar 
conventions,  that  the  mail  packets  of  the  two  nations  shall  continue 
their  navigation,  without  impediment  or  molestation,  until  a  notifica- 
tion froui  one  of  the  governments  to  the  other  that  the  service  is  to 
be  discontinued;  in  which  case  they  shall  be  permitted  to  return 
freely,  and  under  special  protection,  to  their  respective  ports.  And 
the  writers  on  international  law  concur  in  affirming  that  no  provi- 
sion for  the  immunity  of  mail  ships  from  capture  has  as  yet  been 
adopted  by  such  a  general  consent  of  civilized  nations  as  to  constitute 
a  rule  of  international  law.  9  Stat.  969;  Wheaton  (8th  ed.),  pp.  659- 
661,  Dana's  note;  Calvo  (5th  ed.),  §§  2378,  2809;  De  Boeck,  §§  207, 
208.  De  Boeck,  in  §  208,  after  observing  that,  in  the  case  of  mail 
packets  between  belligerent  countries,  it  seems  difficult  to  go  farther 
than  in  the  convention  of  1833,  above  mentioned,  proceeds  to  discuss 
the  case  of  mail  packets  between  a  belligerent  and  a  neutral  country, 
as  follows :  "  It  goes  without  saying  that  each  belligerent  may  stop 
the  departure  of  its  own  mail  packets.  But  can  either  intercept 
enemy  mail  packets  ?  There  can  be  no  question  of  intercepting  neu- 
tral packets,  because  communications  between  neutrals  and  belliger- 
ents are  lawful,  in  principle,  saving  the  restrictions  relating  to  block- 
ade, to  contraband  of  war,  and  the  like ;  the  right  of  search  furnishes 
belligerents  with  a  sufficient  means  of  control.  But  there  is  no  doubt 
that  it  is  possible,  according  to  existing  practice,  to  intercept  and 
seize  the  enemy's  mail  packets." 

The  i)rovision  of  the  sixth  clause  of  the  President's  proclamation  of 
April  20,  1898,  relating  to  interference  with  the  voyages  of  mail 
steamships,  appears  by  the  context  to  apply  to  neutral  vessels  only, 
and  not  to  restrict  in  any  degree  the  authority  of  the  United  States, 
or  of  their  naval  officers,  to  search  and  seize  vessels  carrying  the 
mails  between  the  United  States  and  the  enemy's  country.  Nor  can 
the  authority  to  do  so,  in  time  of  war,  be  affected  by  the  facts  that 
l)efore  the  war  a  collector  of  customs  had  granted  a  clearance,  and  a 
postmaster  had  put  mails  on  board,  for  a  port  which  was  not  then,  but 
has  since  become,  enemy's  country.  Moreover,  at  the  time  of  the 
capture  of  the  Panama,  this  proclanuition  had  not  been  issued.     With- 


CHAP.  III.]  THE   "  PANAMA."  791 

out  an  express  order  of  the  government,  a  merchant  vessel  is  not 
privileged  from  search  or  seizure  by  the  fact  that  it  has  a  govern- 
ment mail  on  board.     The  Peterhoff,  5  Wall.  28,  61. 

The  mere  fact,  therefore,  that  the  Panama  was  a  mail  steamship,  or  t 
that  she  carried  mail  of  the  United  States  on  this  voyage,  does  not  \ 
afford  any  ground  for  exempting  her  from  capture. 

The  remaining  question  in  the  case  is  whether  the  Panama  came 
within  the  class  of  vessels  described  in  the  fourth  clause  of  the  Presi- 
dent's proclamation  of  April  20,  1898,  as  "  Spanish  merchant  vessels," 
and  as  not  "  Spanish  vessels  having  on  board,  any  officer  in  the  mili- 
tary or  naval  service  of  the  enemy,  or  any  coal  (except  such  as  may 
be  necessary  for  their  voyage)  or  any  other  article  prohibited  or  con- 
traband of  war,  or  any  despatch  of  or  to  the  Spanish  Government.'' 

On  the  part  of  the  claimant,  it  was  argued  that  the  arms  which  the 
Panama  carried,  under  the  requirements  of  her  mail  contract  and  for 
the  protection  of  the  mails,  are  not  to  be  regarded  as  contraband  or 
munitions  of  war,  within  the  sense  of  this  clause  ;  that  ''contraband," 
as  therein  referred  to,  means  contraband  cargo,  not  contraband  por- 
tion of  the  ship's  permanent  equipment ;  and  that,  if  the  furnishings 
of  a  ship  could  be  regarded  as  contraband,  every  ship  would  have 
contraband  on  board. 

On  the  other  hand,  it  was  contended,  in  support  of  the  condemna- 
tion, that  the  arms  which  the  Panama  carried,  belonging  to  her  owner, 
were  contraband  of  war,  and  rendered  her  liable  to  capture ;  and  that 
by  reason  of  her  being  so  armed,  and  of  the  provisions  of  her  mail 
contract  with  the  Spanish  Government,  requiring  her  armament,  and. 
recognizing  the  right  of  that  government,  in  case  of  a  suspension  of 
the  mail  service  by  war,  to  take  possession  of  her  for  warlike  pur- 
poses, she  cannot  be  considered  as  a  merchant  vessel,  w'ithin  the  mean- 
ing of  the  proclamation,  but  must  be  treated  like  any  regular  vessel 
of  the  Spanish  navy  under  similar  circumstances. 

The  claimant  much  relied  on  a  case  decided  in  1800  by  the  French 
Council  of  Prizes,  in  accordance  with  the  opinion  and  report  of  Por- 
talis,  himself  a  high  authority.  Wheaton  (8th  ed.),  p.  4G0  ;  De  Boeck, 
§  81.  In  the  case  referred  to,  an  American  vessel,  carrying  ten  can- 
non of  various  sizes,  together  with  muskets  and  munitions  of  war,  had 
been  captured  by  French  fiigates;  and  had  been  condemned  by  two 
inferior  French  tribunals,  upon  the  ground  that  she  was  armed  for 
war,  and  had  no  commission  or  authority  from  her  own  government. 
The  claimants  contended  that  their  ship,  being  bound  for  India,  was 
armed,  for  her  own  defence,  and  that  the  munitions  of  war,  the  mus- 
kets and  the  cannon  that  composed  her  armament  did  not  exceed 
what  was  usual  in  like  cases  for  long  voyages.     Upon  this  point  Por- 


792  BELLIGERENTS   AND   NEUTRALS.  [PART  IT. 

talis,  acting  as  commissioner  of  the  French  Government,  reported  his 
conclusion  on  the  question  of  armament  as  follows  :  '•'  For  my  part,  I 
do  not  think  it  is  enou^^h  to  have  or  to  carry  arras,  to  incur  the 
reproach  of  being  armed  for  war.  Armament  for  war  is  of  a  purely 
offensive  nature.  It  is  established  when  there  is  no  other  object  in 
the  armament  than  that  of  attack,  or,  at  least,  when  everything  shows 
that  such  is  the  principal  object  of  the  enterprise  ;  then  a  vessel  is 
deemed  enemy  or  pirate,  if  she  has  no  commission  or  papers  sufficient 
to  remove  all  suspicion.  But  defence  is  a  natural  right,  and  means 
of  defence  are  lawful  in  voyages  at  sea,  as  in  all  other  dangerous 
occupations  of  life.  A  ship  which  had  but  a  small  crew,  and  a  con- 
siderable cargo,  was  evidently  intended  for  commerce,  and  not  for 
"war.  The  arras  found  on  this  ship  were  evidently  intended,  not  for 
coramibting  acts  of  rapine  or  hostility,  but  for  preventing  them  ;  not 
for  attack,  but  for  self-defence.  The  pretext  of  being  arraed  for  war 
therefore  appears  to  me  to  be  unfounded."  The  Council  of  Prizes, 
upon  consideration  of  the  report  of  Portalis,  adjudged  that  the  cap- 
ture of  the  vessel  and  her  cargo  was  null  and  void,  and  ordered  them 
to  be  restored,  with  damages.  The  Perjou,  or  Pigou,  2  Pistoye  et 
Duverd}',  Prises  Maritiraes,  51;  s.  c.  2  Cranch,  96-98,  and  note. 

But  in  that  case  the  only  question  at  issue  was  whether  a  neutral 
merchant  vessel,  carrying  arras  solely  for  her  own  defence, was  liable  to 
capture  for  want  of  a  coraraission  as  a  vessel  of  war  or  privateer.  That 
the  capture  took  place  while  there  was  no  state  of  war  between  France 
and  the  United  States  is  shown  by  her  being  treated,  throughout  the 
case,  as  a  neutral  vessel ;  if  she  had  been  enemy's  property,  she 
would  have  been  lawful  prize,  even  if  she  had  a  commission,  or  if 
she  were  unarmed.  She  was  not  enemy's  propert}',  nor  in  the 
enemy's  possession,  nor  bound  to  a  port  of  the  enem}--,  nor  had  her 
owner  made  any  contract  with  the  enemy  by  which  the  enemy  was,  or 
would  be,  under  any  circumstances,  entitled  to  take  and  use  her,  either 
for  war,  or  for  any  other  purpose. 

Generally  speaking,  arms  and  ammunition  are  contraband  of  war. 
In  The  Peterhoff,  5  Wall.  28,  Chief  Justice  Chase,  delivering  the  judg- 
ment of  this  court,  said:  "The  classification  of  goods  as  contraband 
or  not  contraband  has  much  perplexed  text-writers  and  jurists.  A 
strictly  accurate  and  satisfactory  classification  is  perhaps  impractica- 
ble ;  but  that  which  is  best  supported  by  American  and  English  deci- 
sions may  be  said  to  divide  all  merchandise  into  three  classes.  Of 
these  classes,  the  first  consists  of  articles  manufactured,  and  prima- 
rily and  ordinarily  used,  for  military  purposes  in  time  of  war;  the 
the  second,  of  articles  which  may  be  and  are  used  for  purposes  of  war 
or   peace,   according    to    circumstances ;    aufl    the    third,    of   articles 


CHAP.  III.]  THE   "  PANAMA."  793 

exclusively  used  for  peaceful  purposes.  Merchandise  of  the  first 
class,  destined  to  a  belligerent  country  or  places  occupied  by  the 
army  or  navy  of  a  belligerent,  is  always  contraband  ;  merchandise  of 
the  second  class  is  contraband  only  when  actually  destined  to  the 
military  or  naval  use  of  a  belligerent;  while  merchandise  of  the  third 
class  is  not  contraband  at  all,  though  liable  to  seizure  and  condemna- 
tion for  violation  of  blockade  or  siege."  And  it  was  adjudged  that  so 
much  of  the  cargo  of  the  Peterhoff^  as  consisted  of  artillery  harness, 
artillery  boots,  and  army  shoes  and  blankets,  came  fairly  under  the 
description'  of  goods  primarily  and  ordinarily  used  for  military  pur- 
poses in  time  of  war;  and,  being  destined  directly  for  tlie  use  of  the 
rebel  military  service,  came  within  the  second,  if  not  within  the  first 
class  of  goods  contraband  of  war.     5  Wall.  58. 

Yet  it  must  be  admitted  that  arms  and  ammunition  are  not  contra-  | 
band  of  war,  when  taken  and  kept  on  board  a  merchant  vessel  as  ]>art 
of  her  equipment,  and  solely  for  her  defence  against "  enemies,  pirates, 
and  assailing  thieves,"  according  to  the  ancient  phrase  still  retained 
in  policies  of  marine  insurance.  Pratt,  in  his  essay  on  the  Law  of 
Contraband  of  War,  speaking  of  the  class  of  *.'  articles  which  are  of 
direct  use  in  war,"  says:  ''With  respect  to  these  no  questions  can 
arise.  On  proof  of  the  use  of  the  article  being  solely  or  particularly 
applicable  to  hostile  purposes,  the  conveyance  of  it  to  the  enemy 
would  amount  to  such  a  direct  interposition  in  the  war  as  necessarily 
to  entail  the  confiscation  of  the  property."  But  he  afterwards  adds 
this  qualification :  '•  But  even  in  the  case  of  articles  of  direct  use  in 
war,  an  exception  is  always  made  in  favor  of  such  a  quantity  of  them 
as  may  be  supposed  to  be  necessary  for  the  use  or  defence  of  the 
ship."  And  again,  speaking  of  "  warlike  stores,"  he  says  :  "  These 
are,  from  their  very  nature,  evidently  contraband  ;  but  every  vessel  is, 
of  course,  allowed  to  carry  such  a  quantity  as  may  be  necessarv  for 
purposes  of  defence  ;  this  provision  is  expressly  introduced  in  many 
treaties."  Pratt,  Contraband  of  War,  xxii,  xxv,  xl.  And  at  pages 
239,  244,  245  of  his  appendix  he  quotes  express  provisions  to  that 
effect  in  the  treaties  between  Great  Britain  and  Eussia  in  1766,  1797, 
and  1801.  See  also  Cases  of  Dutch  and  Spanish  Ships,  6  C.  Eob. 
48;  The  Hajypj/  Couple,  Stewart  Adm.  (Xova  Scotia),  65,  69 ;  Mad- 
ison, quoted  in  3  Whart.  Int.  Law  Dig.  §  368,  p.  313. 

But  the  fact  that  arms  carried  by  a  merchant  vessel  were  originally 
taken  on  board  for  her  own  defence  is  not  conclusive  as  to  her  charac- 
ter. This  is  clearly  shown  by  the  case  of  The  Amelia  (1801),  reported 
by  the  name  of  Talbot  v.  Seenian,  1  Cranch,  1.  In  that  case,  during 
the  naval  warfare  between  the  United  States  and  Prance  near  the  end 
of  the  last  century,  a  neutral  merchant  vessel,  having  eight  iron  can- 


794  BELLIGERENTS   AND   NEUTRALS.  [PART  IL 

Tion  and  eight  Ayooden  guns  mounted  on  board,  and  a  cargo  of  mer- 
chandise, sailed  from  Calcutta  for  Hamburg,  both  being  neutral  ports  ; 
and  befoi-e  reaching  her  destination  was  captured  by  a  French  cruiser, 
and  put  by  her  captors,  with  the  cannon  still  on  board,  in  cliarge  of  a 
French  prize  crew,  with  directions  to  take  her  into  a  French  port 
for  adjudication  as  prize ;  and  on  her  way  thither  was  recaptured 
by  a  United  States  ship  of  war.  The  recapture  Avas  held  to  be  lawful, 
and  to  entitle  the  recaptors  to  salvage  before  restoring  the  vessel  to 
her  neutral  owner,  because,  as  Chief  Justice  Marshall  said,  "  The 
Amelia  was  an  armed  vessel  commanded  and  manned  by  Frenchmen," 
"  she  was  an  armed  vessel  under  French  authority,  and  in  a  condi- 
tion to  annoy  the  American  commerce."  1  Cranch,  32.  And  in  TJie 
Charming  Betsy,  1804,  2  Cranch,  G4,  that  case  was  expressly 
approved,  as  a  precedent  to  be  followed  under  similar  circumstances  ; 
but  was  held  to  be  inapplicable  where  the  arms  on  board  at  the  time 
of  the  recapture  were  but  a  single  musket  and  a  small  amount  of 
powder  and  ball.  2  Cranch,  121.  Notwithstanding  that  the  Amelia 
was  a  neutral  vessel,  with  an  armament  originally  taken  on  board  for 
defence  only,  and  therefore,  while  in  the  possession  of  her  neutral 
I  owner,  would  not  (according  to  the  French  case  above  cited)  have 
been  liable  to  capture  as  an  armed  vessel,  yet,  after  she  had  been 
^ taken  possession  of  by  the  enemy,  with  the  same  armament  still  on 
board,  and  thus  was  in  a  condition  to  be  used  by  the  enemy  for  hostile 
purposes,  the  fact  that  the  original  purpose  of  the  armament  was 
purely  defensive  did  not  prevent  her  from  being  considered  as  an 
armed  vessel  of  the  enemy. 

While  the  authorities  above  referred  to  present  principles  and 
analogies  worthy  of  consideration  in  the  case  at  bar,  they  furnish  no 
conclusive  rule  to  govern  its  determination.  The  decision  of  this  case 
must  depend  upon  its  own  facts,  and  upon  the  true  construction  of  the 
President's  proclamation. 

As  to  the  facts,  there  is  no  serious  dispute.  The  matters  stated  in 
the  test  affidavits  upon  which  the  motion  for  further  proof  was  based, 
add  nothing  of  importance  to  the  facts  disclosed  by  the  testimony 
in  prepa)'atorio,  ^nd  by  the  mail  contract  between  her  owner  and  the 
Spanish  Government,  which  forms  part  of  the  ship's  papers. 

That  contract  contains  many  provisions  looking  to  the  use  of  the 
company's  steamships  by  the  Spanish  Government  as  vessels  of  war. 
Among  other  things,  it  requires  that  each  vessel  shall  have  the  capac- 
ity to  carry  500  enlisted  men  ;  that  that  government,  upon  inspection 
of  her  plans  as  pi*epared  for  commercial  and  postal  purjioses,  may 
order  her  deck  and  sides  to  be  strengthened  so  as  to  support  additional 
artillery  ;  and  that,  in  case  of  the  suspension  of  the  mail  service  by  a 


CHAP.  III.]  THE   "  PANAMA."  795 

naval  war,  or  by  hostilities  in  any  of  the  seas  or  ports  visited  by  the 
company's  vessels,  the  government  may  take  possession  of  them  with 
their  equipment  and  supplies,  at  a  valuation  to  be  made  by  a  commis- 
sion; and  shall,  at  the  termination  of  the  war,  return  them  to  the 
company,  paying  five  per  cent  on  the  valuation  while  it  has  them  in 
its  service,  as  well  as  an  indemnity  for  any  diminution  in  their  value. 

The  Panama  \va.s  not  a  neutral  vessel;  but  she  was  enemy  property, 
and  as  such,  even  if  she  carried  no  arms  (either  as  part  of  her  equip- 
ment, or  as  cargo),  would  be  liable  to  capture,  unless  protected  by 
the  President's  proclamation. 

It  may  be  assumed  that  a  primary  object  of  her  armament,  and,  in 
time  of  peace,  its  only  object,  was  for  purposes  of  defence.  But  that 
armament  was  not  of  itself  inconsiderable,  as  appears,  not  only  from 
the  undisputed  facts  of  the  case,  but  from  the  action  of  the  District 
Court,  upon  the  application  of  the  commodore  commanding  at  the 
port  where  the  court  was  held,  and  on  the  recommendation  of  the 
prize  commissioners,  directing  her  arms  and  ammunition  to  be  deliv- 
ered to  the  commodore  for  the  use  of  the  Navy  Department.  And 
the  contract  of  her  owner  with  the  Spanish  Government,  pursuant  to 
which  the  armament  had  been  put  on  board,  expressly  provided  that, 
in  case  of  war,  that  government  might  take  possession  of  the  vessel 
with  her  equipment,  increase  her  armament,  and  use  her  as  a  war 
vessel ;  and,  in  these  and  other  provisions,  evidently  contemplated  her 
use  for  hostile  purposes  in  time  of  war. 

She  was,  then,  enemy  property,  bound  for  an  enemy  port,  carrying 
an  armament  susceptible  of  use  for  hostile  purposes,  and  herself  liable, 
upon  arrival  in  that  port,  to  be  appropriated  by  the  enemy  to  such 
purposes. 

The  intent  of  the  fourth  clause  of  the  President's  proclamation  was 
to  exempt  for  a  time  from  capture  peaceful  commercial  vessels  ;  not 
to  assist  the  enemy  in  obtaining  weapons  of  war.  Tliis  clause  exempts 
"  Spanish  merchant  vessels  "  only  ;  and  expressly  declares  that  it  shall 
not  apply  to  "  Spanish  vessels  having  on  board  any  officer  in  the  mili- 
tary or  naval  service  of  the  enemy,  or  any  coal  (except  such,  as  may 
be  necessary  for  their  voyage)  or  any  other  article  prohibited  or  contra- 
band of  war,  or  any  despatch  of  or  to  the  Spanish  Government." 

Upon  full  consideration  of  this  case,  this  court  is  of  opinion  that 
the  proclamation,  expressly  declaring  that  the  exemption  shall  not 
apply  to  any  Spanish  vessel  having  on  board  any  article  prohibited  or 
contraband  of  war,  or  a  single  military  or  naval  officer,  or  even  a 
despatch,  of  the  enemy,  cannot  reasonably  be  construed  as  including, 
in  the  description  of  ''Spanish  merchant  vessel,"  which  are  to  be  tem- 
porarily exempt  from  capture,  a  Spanish  vessel  owned  by  a  subject  of 


796  BELLIGERENTS   AND   NEUTRALS.  [PART  H. 

the  enemy  ;  having  an  armament  lit  for  hostile  use  ;  intended,  in  the 
event  of  war,  to  be  used  as  a  war  vessel;  destined  to  a  port  of  the 
enemy ;  and  liable,  on  arriving  there,  to  be  taken  possession  of  by 
the  enemy,  and  employed  as  an  auxiliary  cruiser  of  the  enemy's 
navy,  in  the  war  with  this  country. 

The  result  is,  that    the  Panama  was   lawfully  captured  and  con- 
demned, and  that  the  decree   of  the  District  Court  must  be 

Affirmed. 
Mr.  Justice  Peckham,  dissented. 


Section  44. — Blockade. 


THE  '«NEPTUKUS." 
High  Coukt  of  Admikalty,  1799. 

(2  C.  Robinson,  110.) 

This  was  a  case  of  a  vessel  sailing  on  a  voyage  from  Dantzic  to 
Havre,  26th  October,  1798,  and  taken  in  attempting  to  enter  that 
port  on  26th  November. 

Judgment, — Sir  ^V"^r.  Scott: — 

"This  is  a  case  of  a  ship  and  cargo  seized  in  the  act  of  entering 
the  port  of  Havre  in  pursuance  of  the  original  intention  under  AVliich 
the  voyage  began.  The  notification  of  the  blockade  of  that  port 
was  made  on  the  23d  January,  179S,  and  this  transaction  happened 
in  November  in  that  year;  the  effect  of  a  notification  to  any  foreign 
government  would  clearly  be  to  inchulo  all  the  individuals  of  that 
nation ;  it  would  be  the  most  nugatory  thing  in  the  world,  if  indi- 
viduals were  allowed  to  plead  their  ignorance  of  it ;  it  is  the  duty  of 
foreign  governments  to  communicate  the  information  to  their  sub- 
jects, whose  interests  they  are  bound  to  protect.  I  shall  hold  there- 
fore that  a  neutral  master  can  never  be  heard  to  aver  against  a 
notification  of  blockade,  that  he  is  ignorant  of  it.  If  he  is  really 
ignorant  of  it,  it  may  be  a  subject  of  representation  to  his  own  gov- 
ernment, and  may  raise  a  claim  of  compensation  from  them,  but  it 
can  be  no  plea  in  the  court  of  a  belligerent.  In  the  case  of  a  block- 
ade de  facto  only,  it  may  be  otherwise,  btit  this  is  the  case  of  a 
blockade  l)y  notification  ;  another  distinction  between  a  notified 
blockade  and  a  blockade  existing  de  facto  only,  is  that  in  the  former, 


CHAP.  IIT.]  THE    "NEl'TUNL'S."  797 

the  act  of  sailing  to  a  blockaded  place  is  sufficient  to  constitute  the 
offence.  It  is  to  be  presumed  that  the  notification  will  be  formally 
revoked,  and  that  due  notice  will  be  given  of  it ;  till  that  is  done, 
the  port  is  to  be  considered  as  closed  up,  and  from  the  moment  of 
quitting  port  to  sail  on  such  a  destination,  the  offence  of  violating 
the  blockade  is  complete,  and  the  property  engaged  in  it  subject  to 
confiscation :  it  may  be  different  in  a  blockade  existing  de  facto  I 
only ;  there  no  presumption  arises  as  to  the  continuance,  and  the 
ignorance  of  the  party  may  be  admitted  as  an  excuse,  for  sailing  on 
a  doubtful  and  provisional  destination.  But  this  is  a  case  of  a  ves- 
sel from  Dantzick  after  the  notification,  and  the  master  cannot  be 
heard  to  aver  his  ignorance  of  it.  He  sails : — till  the  moment  of 
meeting  Admiral  Duncan's  fleet,  I  should  have  no  hesitation  in  say- 
ing, that,  if  he  had  been  taken,  he  would  have  been  taken  in  delicto, 
and  have  subjected  his  vessel  to  confiscation ;  but  he  meets  Admiral 
Duncan's  fleet,  and  is  examined,  and  liberated  by  the  captain  of  an 
English  frigate  belonging  to  that  fleet,  who  told  him  that  he  might 
proceed  on  his  destination,  and  who,  on  being  asked.  Whether 
Havre  was  under  a  blockade  ?  said,  '  it  was  not  blockaded,'  and 
wished  him  a  good  voyage.  The  question  is,  In  what  light  he  is  to 
be  considered  after  receiving  this  information?  That  it  was  io«« 
fide  given  cannot  be  doubted,  as  they  would  otherwise  have  seized 
the  vessel ;  the  fleet  must  have  been  ignorant  of  the  fact ;  and  I 
have  to  lament  that  they  were  so :  When  a  blockade  is  laid  on,  it 
ought  by  some  kind  of  communication  to  be  made  known  not  only 
to  foreign  governments,  but  to  the  King's  subjects,  and  particularly 
to  the  King's  cruisers ;  not  only  to  those  stationed  at  the  blockaded 
ports,  but  to  others,  and  especially  considerable  fleets,  that  are  sta- 
tioned in  itinere,  to  such  a  port  from  the  different  trading  coun- 
tries that  may  be  supposed  to  have  an  intercourse  with  it. 

"  Perhaps  it  would  have  been  safer  in  the  English  captain  to  have 
answered,  that  he  could  not  say  anything  of  the  situation  at  Havre ; 
but  the  fact  is  (and  it  has  not  been  contradicted),  that  the  British 
officer  told  the  master  '  that  Havre  Avas  not  blockaded.'  Under 
these  circumstances,  I  think  that  after  this  information  he  is  not 
taken  in  delicto.  I  do  not  mean  to  say  that  the  fleet  could  give  the 
man  any  authority  to  go  to  a  blockaded  port ;  it  is  not  set  up  as  an 
authority,  but  as  intelligence  affording  a  reasonable  ground  of  be- 
lief ;  as  it  could  not  be  supposed,  that  such  a  fleet  as  that  was,  would 
be  ignorant  of  the  fact. 

"  From  that  time  I  consider  that  a  state  of  innocence  commences ; 
the  man  was  not  only  in  ignorance,  but  had  received  positive  infor- 
mation that  Havre  was  not  blockaded.     Under  these  circumstances, 


798  BELLIGERENTS    AND   NEUTRALS.  [PART  II. 

I  think  it  would  be  a  little  too  hard  to  press  the  former  offence 
against  liira ;  it  would  be  to  press  a  pretty  strong  principle  rather 
too  strongly ;  I  think  I  cannot  look  retrospectively  to  the  state  in 
which  he  stood  before  the  meeting  with  the  British  fleet,  and  there- 
fore I  shall  direct  this  vessel  and  cargo  to  be  restored." 


THE  ''BETSEY." 

High  Court  of  Admiralty,  1798. 

(1  C.  Robinson,  92  a.) 

Judgment.  —  Sir  W.  Scott  :  ^  — 

"  On  the  question  of  blockade  three  things  must  be  proved :  1st, 
the  existence  of  an  actual  blockade;  2dly,  the  knowledge  of  the 
party ;  and,  3dly,  some  act  of  violation,  either  by  going  in,  or  by 
coming  out  with  a  cargo  laden  after  the  commencement  of  blockade. 
The  time  of  shipment  would  on  this  last  point  be  very  material,  for 
although  it  might  be  hard  to  refuse  a  neutral  liberty  to  retire  with 
a  cargo  already  laden,  and  by  that  act  already  become  neutral  prop- 
erty ;  yet,  after  the  commencement  of  a  blockade,  a  neutral  cannot, 
I  conceive,  be  allowed  to  interpose  in  any  way  to  assist  the  exj)orta- 
tion  of  the  property  of  the  enemy.  After  the  commencement  of  the 
)  blockade,  a  neutral  is  no  longer  at  libert}'^  to  make  any  purchase  in 
i  that  port. 

"  It  is  necessary,  however,  that  the  evidence  of  a  blockade  should 
be  clear  and  decisive :  but  in  this  case  there  is  only  an  affidavit  of 
one  of  tlie  captors,  and  the  account  which  is  there  given  is,  'that  on 
the  arrival  of  the  British  forces  in  the  West  Indies,  a  proclamation, 
inviting  the  inhabitants  of  Martinique,  St.  Lucie,  and  Guadaloupe 
to  put  themselves  under  the  protection  of  the  English ;  that  on  a  re- 
fusal, hostile  operations  were  commenced  against  them  all ; '  but  it 
cannot  be  meant  that  they  began  immediately  against  all  at  once; 
for  it  is  notorious  that  they  were  directed  against  them  separately 
and  in  succession.  It  is  further  stated,  'that  in  January,  1794  (but 
without  any  more  piecise  date),  Guadaloupe  was  summoned,  and 
was  then  i)ut  into  a  state  of  complete  investment  and  blockade.' 

"  The  word  complete  is  a  word  of  great  energy  ;  and  we  might  ex- 
jject  from  it  to  And,  that  a  munber  of  vessels  were  stationed  round 

^  Facts  oniitteil,  ami  only  part  of  the  judgment  is  given.  —  Ed. 


CHAP,  in.]  THE    "BETSEY."  799 

the  entrance  of  the  port  to  cut  off  all  communication :  hut,  from  the 
protest,  I  perceive  that  the  captors  entertained  but  a  very  loose  no- 
tion of  the  true  nature  of  a  blockade  ;  for  it  is  there  stated,  '  that  on 
the  1st  of  January,  after  a  general  proclamation  to  the  French 
islands,  they  were  put  into  a  state  of  complete  blockade.'  It  is  a 
term,  therefore,  which  was  applied  to  all  those  islands  at  the  same 
time,  under  the  first  proclamation. 

"Tlie  Lords  of  Appeal  have  determined  that  such  a  proclamation 
was  not  in  itself  sufficient  to  constitute  a  legal  blockade :  it  is  clear, 
indeed,  that  it  could  not  in  reason  be  sufficient  to  produce  the  effect, 
which  the  captors  erroneously  ascribed  to  it :  but  from  the  misap- 
plication of  these  phrases  in  one  instance,  I  learn,  that  we  must  not 
give  too  much  weight  to  the  use  of  them  on  this  occasion  ;  and,  from 
the  generality  of  these  expressions,  I  think,  we  must  infer,  that 
there  was  not  that  actual  blockade  wliich  the  law  is  now  distinctly 
understood  to  require. 

"But  it  is  attempted  to  raise  other  inferences  on  this  point,  from 
the  manner  in  which  the  master  speaks  of  the  difficulty  and  danger 
of  entering ;  and  from  the  declaration  of  the  municipality  of  Guada- 
loupe,  which  states  '  the  island  to  have  been  in  a  state  of  siege.'  It 
is  evident  the  American  master  speaks  only  of  the  difficulty  of  avoid- 
ing the  English  cruisers  generally  in  those  seas ;  and  as  to  the  other 
phrase,  it  is  a  term  of  the  new  jargon  of  France,  which  is  sometimes 
applied  to  domestic  disturbances ;  and  certainly  is  not  so  intelligible 
as  to  justify  me  in  concluding,  that  the  island  was  m  a  state  of  in- 
vestment, from  a  foreign  enemy,  which  we  require  to  constitute 
blockade :  I  cannot,  therefore,  lay  it  down,  that  a  blockade  did  exist, 
till  the  operations  of  the  forces  were  actually  directed  against  Gua- 
daloupe  in  April. 

"  It  would  be  necessary  for  me,  however,  to  go  much  farther,  and 
to  say  that  I  am  satisfied  also  that  the  parties  had  knowledge  of  it : 
but  this  is  expressly  denied  by  the  master.  He  went  in  without  ob- 
struction. Mr.  Incledon's  statement  of  his  belief  of  the  notoriety  of 
the  blockade  is  not  such  evidence  as  will  alone  be  sufficient  to  con- 
vince me  of  it.  With  respect  to  the  shipment  of  the  cargo,  it  does 
not  appear  exactly  under  what  circumstances  or  what  time  it  was 
taken  in :   I  shall  therefore  dismiss  this  part  of  the  case.    *    *    *  " 


800  BELLIGERENTS   AND   NEUTRALS.  [PART  II. 

THE    "PAXAGHIA   EHOMBA." 
Privy  Council,  1858. 

(12  Moore's  Privy  Council,  168.) 

The  Right  Hon.  T.  Pemberton  Leigh  :  ^  — 

This  case  involves  a  general  principle  of  so  much  importance  that 
their  lordships  thought  it  desirable  to  take  time  for  its  consideration, 
although  they  had  a  strong  impression  at  the  hearing  as  to  the  decision 
at  which  they  must  arrive. 

The  Panarjhia  Rliomha  took  in  a  cargo  of  wheat  at  Galatz,  in  the 
month  of  September,  1855,  to  be  conveyed  to  the  Piraeus  or  Syra,  on 
the  joint  account  of  Signor  Cuppa,  an  Ionian  merchant,  resident  in 
Constantinople,  and  of  ^Messrs.  Baltazzi,  Britisli  merchants,  resident 
in  London. 

In  the  month  of  November  following,  the  vessel  was  captured  by 
her  Majesty's  ship  Dauntless,  for  an  attempt  to  violate  the  blockade  of 
the  port  of  Odessa,  which  had  subsisted  from  the  month  of  February, 
1855,  and  was  then  continuing. 

The  ship  has  been  condemned  by  the  court  below  upon  evidence 
■which  quite  satisfies  their  lordships  of  the  propriety  of  the  sentence; 
and  the  question  now  raised  is,  whether  it  is  competent  to  the  claim- 
ants of  the  cargo  to  protect  their  property  from  condemnation  by 
showing  their  innocence  in  the  transaction  ;  or  whether,  under  the 
circumstances  of  this  case,  the  owners  of  the  cargo  are  concluded  by 
the  illegal  act  of  the  master,  though  it  may  have  been  done  without 
their  privity,  and  even  contrary  to  their  wishes. 

It  has  been  held  by  the  court  below,  that  the  owners  are  so  con- 
cluded, and  that  the  rule  upon  the  subject  is  established  by  authority 
not  now  to  be  questioned. 

The  first  case  to  which  we  have  been  referred  is  the  Mercnruis  (1 
Rob.  80),  which  came  before  Lord  Stowell  in  1798.  There  a  cargo  had 
been  put  on  board  the  Mercurius  in  America,  at  a  time  when  it  could 
not  have  been  known  in  that  country  that  a  blockade  of  the  Texel  had 
been  established.  The  master,  after  warning,  attempted  to  enter  the 
Texel,  and  the  ship  was  condemned,  because  the  owner  was  bound  by 
the  act  of  the  master;  but  the  cargo  was  restored,  because,  as  Lord 
Stowell  observes,  tlie  shippers  at  the  time  of  shipment  could  not  have 
known  of  the  blockade,  and  the  master,  though  he  was  the  agent  of 

1  Facts  omitted  as  the  judgment  suflBciently  states  the  case.  — Ed. 


CHAr.  Ill]  THE    "PANAGHIA    RHOMBA."  801 

owner  of  the  vessel,  and  could  bind  him  by  his  contract  or  his  miscon- 
duct, was  not  the  agent  of  the  owners  of  tlie  cargo,  unless  expressly  so 
constituted  by  them.  Lord  Stowell,  in  that  case,  addressed  himself  to 
the  argument  of  the  captors,  that  to  exempt  the  cargo  from  condem- 
nation would  open  a  door  to  fraud,  if  neutrals  were  allowed  to  trade 
with  blockaded  ports  with  immunity,  by  throwing  the  blame  upon  the 
carrier-master  ;  and,  in  answer  to  that  objection,  he  observed,  that  "  if 
such  an  artifice  could  be  proved,  it  would  establish  tha^t  mens  rea  in  the 
neutral  merchant  which  would  expose  his  property  to  confiscation,  and 
it  would  be  at  the  same  time  sufficient  to  cause  the  master  to  be 
considered  in  the  character  of  agent,  as  well  for  the  cargo  as  for 
the  ship." 

In  that  case  Lord  Stowell  seems  to  have  thought  that  the  owners 
of  the  cargo  were  not  bound  by  the  act  of  the  master  without  their 
authority,  and  the  judgment  seems  rather  to  warrant  the  marginal 
note  which  the  very  learned  reporter  has  stated  as  the  effect  of  it, 
namely,  "  Violation  of  blockade  by  the  master  affects  the  ship,  but 
not  the  cargo,  unless  the  property  of  the  same  owner,  or  unless  the 
owner  is  cognizant  of  the  intended  violation." 

Now,  in  the  present  case,  Dr.  Lushington  has  stated  his  conviction 
that  the  owners  of  the  cargo  were  innocent  of  all  knowledge  of  the 
intended  violation;  and  if,  therefore,  the  law  remained  as  it  is  to  be 
collected  from  the  case  of  the  Merciirius,  their  lordships  would  have 
great  difficulty  in  assenting  to  the  decision  now  under  review. 

But  subsequent  cases  seem  to  have  carried  the  rule  much  further, 
and  to  have  established  that  when  the  blockade  was  known,  or  might 
have  been  known,  to  the  owners  of  the  cargo  at  the  time  when  the 
shipment  was  made,  and  they  might,  therefore,  by  possibility  be  privy 
to  an  intention  of  violating  the  blockade,  such  privity  shall  be  assumed 
as  an  irresistible  inference  of  law,  and  it  shall  not  be  competent  to 
them  to  rebut  it  by  evidence;  that  in  cases  of  blockade,  for  the  purpose 
of  affecting  the  cargo  with  the  rights  of  the  belligerent,  the  master 
shall  be  treated  as  the  agent  for  the  cargo  as  well  as  for  the  ship. 
This  is  the  result  of  the  cases  cited  by  Dr.  Lushington  in  his  judg- 
ment, and  the  additional  authorities  mentioned  at  the  bar. 

In  the  case  of  the  Alexander  (4  Rob.  94),  which  occurred  in  1801, 
Lord  Stowell  held  that,  in  cases  of  breach  of  blockade,  the  court  must 
infer  "  that  a  ship  going  in  fraudulently,  is  going  in  the  service  of  the 
cargo,  with  the  knowledge  and  by  the  direction  of  the  owner." 

In  the  case  of  the  Adonis  (5  Rob.  259),  which  occurred  in  1804,  he 
went  a  step  further,  and  held  not  only  that  such  inference  must  be 
made,  but  that  (witli  the  exception  to  which  we  have  already  referred) 
the  owners  could  be  not  let  in  to  prove  a  contrary  intention.     This  case 

51 


802  BELLIGERENTS    AND   NEUTRALS.  [PART  IT. 

was  affirmed  upon  appeal,  and  it  possesses,  tlierefore,  all  the  authority 
which  the  decisions  of  the  tribunal  of  a  single  country  can  give  in  a 
law  in  which  all  civilized  countries  are  concerned. 

The  same  doctrine  is  laid  down  by  the  same  great  judge  in  the  case 
of  the  Exchange  (1  Edward's  Rep.  42),  in  1808,  and  in  the  James  Cook 
(1  Edwards,  261)  in  J810. 

We  find,  therefore,  a  series  of  authorities  establishing  a  general  rule, 
which,  like  all  general  rules,  may  in  its  application  to  particular  cases 
be  occasionally  attended  with  hardship,  but  which,  nevertheless,  may 
be  necessary  to  prevent  fraud,  and  may,  on  the  whole,  promote  the 
purposes  of  justice.  It  is  a  rule  not  applicable  exclusively  to  neu- 
trals, but  applies  with  equal  force  to  all  persons  attempting  to  vio- 
late a  blockade,  though  they  may  be  the  subjects  or  the  allies  of  the 
countr}'-  which  has  established  it.  In  tlie  present  case,  indeed,  Messrs. 
Baltazzi,  the  claimants,  are  British  subjects. 

The  propriety,  or  rather  the  necessity,  of  acting  upon  these  rules,  is 
rested  by  Lord  Stowell  on  the  notoriety  of  the  fact  that  in  almost  all 
cases  of  breach  of  blockade,  the  attempt  is  made  for  the  benefit  and 
with  the  privity  of  the  owners  of  the  cargo ;  that  if  they  were  at 
liberty  to  allege  their  innocence  of  the  act  of  the  master,  it  would 
always  be  easy  to  manufacture  evidence  for  the  purpose,  which  the 
captors  would  have  no  means  of  disproving;  and  that,  in  order  to 
make  a  blockade  effectual,  it  is  essential  to  hold  tlie  cargo  responsible 
to  the  blockading  power  for  the  act  of  the  master,  to  whom  the  control 
'  over  it  has  been  entrusted,  leaving  the  owners  to  seek  their  remedy 
against  the  master  or  the  owners  of  the  ship,  if,  in  reality,  the  penalty 
was  incurred  without  any  privity  on  their  part. 

It  is  impossible  not  to  feel  the  force  of  this  reasoning  ;  it  rests  on 
the  same  grounds  with  another  rule  of  the  Prize  Courts,  which  treats 
as  invalid  the  sale  of  a  ship  in  transitu,  a  point  upon  which  we  have 
had  very  recently  to  examine  the  law.^ 

Agaitist  a  rule,  acted  upon  and  promulgated  to  the  world  for  so  many 
'  years,  the  counsel  for  tlie  appellants,  though  challenged  to  do  so  by 
the  respondents,  have  not  produced  a  single  decision  or  dictum  by  any 
one  judge  or  jurist  in  any  part  of  the  world.  Under  these  circum- 
stances, their  lordships  must  consider  it  as  a  settled  principle  of  prize 
law  by  which  they  are  bound. 

Holding  themselves  to  be  precluded  by  the  rule  of  law  from  looking 
into  the  evidence  in  the  case  in  order  to  judge  of  the  guilt  or  inno- 
cence of  the  claimants,  they  can  express  no  opinion  upon  this  subject. 
But  they  think  that,  as  the  learned  judge  in  the  court  below  has  de- 
clared his  conviction  of  their  entire  innocence,  and  his  reluctance  to 

1  III  The  Dallica,  1]  Moore's  P.  C.  Cases,  141. 


CHAP,  in.]  THE    "JOHANNA   MAEIA."  803 

pronounce  the  sentence  complained  of,  the  claimants  may  fairl}^  be 
considered  to  have  been  invited  to  bring  this  appeal,  and  that  in 
affirming  the  sentence,  her  Majesty  should  be  advised  to  make  the 
order  without  awarding  costs  against  the  appellants.* 


THE    ''JOHANNA   MAEIA." 
Privy  Council,  1855. 

(10  Moore's  Privy  Council,  70.) 

The  Eight  Hon.  T.  Pemberton  Leigh:  ^ — - 

This  vessel  entered  Eiga  on  the  20th  of  May,  after  all  difficulty 
arising  from  the  Order  in  Council  of  the  15th  of  April  had  been  re- 
moved. She  came  out  again  on  the  24th  of  May,  having  taken  on 
board  a  cargo,  with  a  full  knowledge  of  the  existence  of  the  blockade 
at  the  time  of  loading,  and  in  the  expectation,  as  it  is  said,  that  the 
w^orst  that  could  happen  would  be  that  she  would  be  sent  back  by  the 
British  ships  forming  the  blockade,  to  unload  her  cargo. 

The  only  ground  upon  which  she  could  ask  to  be  relieved  from  con- 
demnation would  be,  that  the  letter  of  Sir  Charles  Napier,  of  the  27th 
of  May,  1854,  and  the  subsequent  announcement  by  the  British  Gov- 
ernment in  the  London  Gazette,  of  the  14th  of  August,  would  be 
sufficient  to  annul  all  that  has  previously  taken  place,  and,  on  the 

^  The  gist  of  blockade  is  to  prevent  trade  with  the  enemy  :  where  this  feature  is 
wanting,  courts  are  not  over  stringent  in  applying  the  strict  rule  of  condemnation. 
Thus,  in  U.  S.  v.  Guillem,  1850,  11  How.  47,  a  Frenchman  was  permitted  to  leave  Vera 
Cruz,  a  blockaded  port,  on  board  a  French  vessel,  for  France.  Mr.  Chief  Justice 
Taney,  in  a  brief  and  careful  opinion,  made  tlie  following  points  :  1.  That  a  neutral 
leaving  a  belligerent  countrj',  in  which  lie  was  domiciled  at  the  beginning  of  the  war, 
is  entitled  to  the  rights  of  a  neutral  in  his  person  and  property,  as  soon  as  he  sails  from 
the  hostile  port ;  2.  The  property  he  takes  with  him  is  not  liable  to  condemnation  for  a 
breach  of  blockade  by  the  vessel  in  which  he  embarks,  when  entering  or  departing 
from  tlie  port,  unless  he  knew  of  tiie  intention  of  the  vessel  to  break  it  in  going  out. 

Neutral  vessels,  lying  in  the  enemy  liarbor  at  the  outbreak  of  war,  are  legally  and 
innocently  there.  Tliey  are,  therefore,  permitted  to  depart  in  peace  before  applying 
the  blockade.  "The  period,"  says  Mr.  Hall  (Int.  Law,  7S3),  "  which  is  allowed  for  the  ] 
exit  of  ships  is  usually  fixed  at  fifteen  days,  and  during  this  time  vessels  may  issue  I 
freely  in  ballast  or  with  a  cargo  bona  Jide  bought  and  sliipped  before  the  commence- 
ment of  the  blockade.  This  time  was  given  in  1848  and  1864  by  Denmark  ;  by  Eng- 
land and  France  during  the  Crimean  war;  by  the  United  States  during  the  civil  war, 
and  by  France  in  the  war  of  1870."  By  proclamation  of  April  22,  1898,  the  late  Presi- 
dent McKinley  generously  doubled  this  period.  19  Richardson's  Messages  and  Papers, 
202.  —Ed. 

'■^  Statement  of  the  case  omitted.  —  Ed. 


804  BELLIGERENTS    AND   NEUTRALS.  [PART  II. 

principles  laid  down  by  Lord  Stowell,  in   The  Holla   (G  Eob.  SG8),  to 
postpone  all   penalties  for  breach  of   blockade  till  after  the  '28th  of 

Their  lordships,  however,  are  of  opinion  that  such  a  judgment 
Avould  carry  the  doctrine  referred  to  fu]-ther  than  eitlier  the  decision 
itself  or  sound  principle  would  warrant.  In  that  case,  Lord  Stowell 
observed  that  the  blockade  had  been  very  lax ;  that  several  vessels 
had  been  permitted  by  the  blockading  squadron  to  enter,  and  the 
observations  relied  on  must  be  understood  with  regard  to  the  circum- 
stances out  of  which  they  arose.  In  this  case,  from  the  5th  of  May, 
there  had  been  an  uninterrupted  blockade  ;  no  single  instance  has 
been  produced  in  which  any  vessel  had  been  permitted  by  any  of  the 
blockading  ships  to  enter  the  port ;  nor  had  any  been  permitted  to 
come  out  after  the  15th  of  May,  with  cargoes  subsequently  loaded. 
There  is  clear  proof  of  a  de  facto  blockade  ;  full  knowledge  of  it  by 
the  master,  and  nothing  which  could  mislead  him  as  to  its  extent  or 
effect.  The  usual  consequences  must,  therefore,  follow,  and  the  sen- 
tence below  be  affirmed,  but  witliout  costs  of  the  appeal. 

By  respective  Orders  in  Council  the  sentences  in  these  cases,  as  well 
as  the  sentences  relating  to  the  condemnation  of  their  cargoes,  were 
reversed,  and  simple  restitution  decreed.' 


THE   "FRAXCISKA." 
pRivT  Council,  1855. 

(10  Moore's  Privjj  Council,  37.) 

On  the  5th  of  April,  1854,  the  commander  of  the  Baltic  fleet  block- 
aded, lie  facto,  the  coast  of  Courland,  but  his  notice  to  the  British 
Ministers,  including  the  British  Minister  at  Copenhagen,  was  of  that 
character  that  the  impression  Avas  that  all  the  Russian  ports  in  the 
Baltic  were  blockaded.  The  British  Government  also  on  that  date 
issued  an  Order  in  Council,  giving  permission  up  to  the  15th  of  INfay, 
for  Russian  vessels  to  discharge  their  cargoes  from  Russian  ports  in 
the  Baltic  and  White  Sea  to  their  port  of  destination,  even  though 
those  ports  were  in  a  state  of  blockade.  A  similiar  permission  was 
granted  by  the  French  Government.  And  the  Russian  Government  by 
a  L'kase  allowed  the  same  indulgence  to  Englisli  and  French  ships. 

1  In  addition  to  Tlie  RoIJa,  1807,  0  C.  Rob.  .364,  tlie  following  cases  were  referred 
to  in  the  argument:  The  Ncptuwtx,  179:»,  2  C.  Rob.  110,  ante;  The  Jitffiow  Maria 
Schroeder,  1800,  3  C.  Hob.  147.  — Eu. 


CHAP.  III.]  THE    "  FRAXCISKA."  805 

On  the  14:th  of  May,  185-4,  a  neutral  vessel,  under  Danish  colors,  sailed 
from  Copenhagen  for  Riga,  and  was  captured  off  Riga  by  an  English 
ship  of  war  on  the  22d  of  that  month,  for  a  breach  of  the  blockade  of 
tliat  port.  From  Dr.  Lushington's  decree  of  condemnation  an  appeal 
■was  taken  to  the  Privy  Council.-^ 

The  Eight  Hon.  T.  Pembektox  Leigh  :  ^  — 

As  regards  export,  therefore,  from  the  Baltic  ports,  by  the  effect  of 
these  several  ordinances  all  restriction  up  to  the  loth  of  May,  on  the 
convej'ance  of  cargoes  in  Russian  vessels  to  British  and  French  ports, 
was  removed;  and  though  British  and  French  vessels  would,  by  the 
geueral  law  of  nations,  be  liable  to  confiscation  for  breach  of  blockade, 
by  sailing  from  blockaded  ports  with  cargoes  taken  on  board  after 
notice  of  the  blockade,  and  the  permission  to  export  is,  by  the  orders, 
in  terms,  confined  to  Russian  vessels,  it  seems  improbable  that  the 
Allied  Powers  could  intend  to  deprive  their  subjects  of  the  indulgence 
granted  to  them  by  the  Russian  Government,  or  to  subject  their  prop- 
erty to  confiscation  for  doing  what  the  enemy  was  permitted  to  do 
with  impunity. 

In  effect,  therefore,  neutrals  only  would  be  excluded  from  that  com- 
merce which  belligerents  might  safely  carry  on  ;  and  the  question  is, 
whether  by  the  law  of  nations  such  exclusion  be  justifiable;  and,  if 
not,  in  what  manner  and  to  what  extent  neutral  powers  are  entitled 
to  avail  themselves  of  the  objection. 

That  such  exclusion  is  not  justifiable  is  laid  down  in  the  clearest 
and  most  forcible  language  in  the  following  passage  of  the  judgment 
now  under  review:  "The  argument  stands  thus:  by  the  law  of 
nations  a  belligerent  shall  not  concede  to  another  belligerent,  or  take 
for  himself,  the  right  of  carrying  on  commercial  intercourse  pro- 
hibited to  neutral  nations  ;  and,  therefore,  no  blockade  can  be  legiti- 
mate that  admits  to  either  belligerent  a  freedom  of  commerce  denied 
to  the  subjects  of  states  not  engaged  in  the  war.  The  foundation  of 
the  principle  is  clear,  and  rooted  in  justice  ;  for  interference  with 
neutral  commerce  at  all  is  only  justified  b\''  the  right  which  war  con- 
fers of  molesting  the  enemy,  all  relations  of  trade  being  by  war  itself 
suspended.  To  this  principle  I  entirely  concede;  and  I  should  regret 
to  think  if  any  authority  could  be  cited  from  the  decisions  of  any 
British  court  administering  the  law  of  nations,  which  could  be  with 
truth  asserted  to  maintain  a  contrary  doctrine.'" 

The  learned  judge,  after  discussing  the  question  how  far  licenses 
to  enter  blockaded  ports  would  invalidate  a  blockade,  and  pointing  out 
the  important  distinctions  between  blockades  according  to  the  ordinary 

^  Tliis  statement  is  taken  from  the  head-note  of  tlie  case. —  Ed. 

2  Only  a  part  of  the  ehiborate  opinion  uf  this  very  learned  judge  is  given.  — Ed. 


806  BELLIGERENTS   AND   NEUTRALS.  [PART  II. 

law  of  nations,  and  the  blockades  introduced  during  the  last  war  by 
the  Berlin  and  Milan  decrees  on  the  one  hand,  and  the  British  Orders 
in  Council  on  the  other,  and  between  special  licenses  granted  for  a 
particular  occasion  and  licenses  granted  indiscriminately,  proceeds,  "  I 
think  that  if  the  relaxation  of  a  blockade  be,  as  to  belligerents,  entire, 
the  blockade  cannot  lawfully  subsist ;  if  it  be  partial  and  such  as  to 
exceed  special  occasion,  that,  to  the  extent  of  such  partial  relaxation, 
neutrals  are  entitled  to  a  similar  benefit."  And  he  concludes  his  able 
discussion  of  this  part  of  the  case,  in  these  words  :  "  With  respect  to 
the  present  question  I,  therefore,  have  come  to  the  conclusion,  that  as 
Russian  vessels  might  have  left  the  ports  of  Courland  up  to  the  15th 
of  IVIay,  the  subjects  of  neutral  states  ought  to  be  entitled  to  the  same 
advantages,  and  if  there  be  any  vessel  so  circumstanced  I  should  hold 
her  entitled  to  restitution.  I  think  the  remedy  should  be  commen- 
surate with  the  grievance."  The  learned  judge  holds  that  such  re- 
laxation does  not  affect  the  general  validity  of  the  blockade. 

In  order  to  judge  how  far  this  conclusion  can  be  maintained,  it  is 
necessary  to  consider  upon  what  principles  the  right  of  a  belligerent 
to  exclude  neutrals  from  a  blockaded  port  rests.  That  right  is  founded, 
not  on  any  general  unlimited  right  to  cripple  the  enemy's  commerce 
with  neutrals  by  all  means  effectual  for  that  purpose,  for  it  is  ad- 
mitted on  all  hands  that  a  neutral  has  a  right  to  carry  on  with  each 
of  two  belligerents  during  war  all  the  trade  that  was  open  to  him  in 
times  of  peace,  subject  to  the  exceptions  of  trade  in  contraband  goods 
and  trade  with  blockaded  ports.  Both  these  exceptions  seem  founded 
on  the  same  reason,  namely,  that  a  neutral  has  no  right  to  interfere 
with  the  military  operations  of  a  belligerent,  either  by  supplying  liis 
enemy  with  materials  of  war,  or  by  holding  intercourse  with  a  place 
which  he  has  besieged  or  blockaded. 

Grotius  expresses  himself  upon  the  subject  in  these  terms :  —  *'  Si 
juris  mei  executionem  rerum  subvectio  impedierit,  idque  scire  potuerit, 
qui  advexit,  ut  si  oppidum  obsessum  tenebam,  si  portus  clauses,  et 
jam  deditio  aut  pax  expectabatur,  tenebitur  ille  mihi  de  damno  cul})a 
dato."     De  Jure  Belli  ac  Pacis,  lib.  III.  c.  I.  s.  V. 

Bynkershoek's  commentary  on  this  passage  is  to  the  effect  that  it 
is  unlawful  to  carry  anything,  whetlier  contraband  or  not,  to  a  place 
thus  circumstanced,  since  those  who  are  within  may  be  compelled  to 
surrender,  not  merely  by  the  direct  application  of  force,  but  also  by 
the  want  of  provisions  and  other  necessaries.  "  Sola  obsidio  in  causS 
est,  cur  nihil  obsessis  subvehere  liceat,  sive  coTitrabandum  sit,  sive  non 
sit,  nam  obsessi  non  tantum  vi  coguntur  ad  deditionem,  sed  et  fame, 
et  alia  aliarum  rerum  penuria."     Quae.  Jur.  Pub.  lib.  I.  c.  II. 

Wheaton  in  his  Elements  of  International  Law,  Vol.  II.  pp.  228-230, 


CHAP.  III.]  THE    "  FRANCISKA."  807 

justly  observes  that  this  passage  in  Bynkershoek  goes  too  far,  and 
that  a  blockade  is  not  confined  to  the  case  where  there  is  a  siege  or 
blockade  with  a  view  to  the  capture  of  a  place  or  the  expectation  of 
peace.  But  these  passages  seem  to  point  to  the  reason  on  which  this 
interference  with  the  ordinary  rights  of  neutrals  was  originally 
justified. 

Vattel  lays  down  the  same  doctrine  :  —  "  Quand  je  tiens  une  place 
assiegee,  ou  seulement  bloquee,  je  suis  en  droit  d'empecher  que  per- 
sonne  n'y  entre,  et  de  traiter  en  ennemi  quicouque  entreprend  d'y 
entrer,  sans  ma  permission,  ou  d'y  porter  quoi  que  ce  soit:  car  il 
s'oppose  a  mon  entreprise,  il  peut  contribuer  a  la  faire  echouer,  et  par 
la  me  faire  tomber  dans  tous  les  maux  d'une  guerre  malheureuse." 
B.  III.  c.  VII.  s.  1,  17. 

These  passages  refer  only  to  ingress  and  the  importation  of  goods, 
but  it  is  clear  that  the  operations  of  the  siege  or  blockade  may  be 
interrupted  by  any  communication  of  the  blockaded  or  besieged  place 
with  foreigners;  and  Lord  Stowell,  when  he  defines  a  blockade,  always 
speaks  of  it  as  the  exclusion  of  the  blockaded  place  from  all  commerce, 
whether  by  egress  or  ingress.  In  The  Frederick  llolke,  1  Rob.  87, 
he  says :  '•  What  is  the  object  of  a  blockade  ?  not  merely  to  prevent 
an  importation  of  supplies ;  but  to  prevent  export  as  well  as  import ; 
and  to  cut  off  all  communication  of  commerce  with  the  blockaded 
place.  In  The  Betsey,  1  Rob.  93,  "  After  the  commencement  of  a  block- 
ade a  neutral  cannot,  I  conceive,  be  allowed  to  interpose  in  any  way 
to  assist  the  exportation  of  the  property  of  the  enemy."  In  the  Vromv 
Judith,  1  Rob.  151,  "A  blockade  is  a  sort  of  circuravallation  round 
a  place  by  which  all  foreign  connection  and  correspondence  is,  as  far 
as  human  force  can  effect  it,  to  be  entirely  cut  off.  It  is  intended  to 
suspend  the  entire  commerce  of  that  place  ;  and  a  neutral  is  no  more 
at  liberty  to  assist  the  traffic  of  exportation  than  of  importation.'^  In 
The  Bolla,  6  Rob.  372,  "  What  is  a  blockade  but  a  uniform  universal 
exclusion  of  all  vessels  not  privileged  by  law  ? "  In  The  Success^ 
1  Dods.  134,  "  The  measui'e  which  has  been  resorted  to,  being  in  the 
nature  of  a  blockade,  must  operate  to  the  entire  exclusion  of  British 
as  well  as  neutral  ships;  for  it  would  be  a  gross  violation  of  neutral 
rights,  to  prohibit  their  trade,  and  to  permit  the  subjects  of  tliis 
country  to  carry  on  an  unrestricted  commerce  at  the  very  same  ports 
from  which  neutrals  are  excluded." 

It  is  contended  that  the  objection  of  a  neutral  to  the  validity  of  a 
blockade,  on  the  ground  of  its  relaxation  by  a  belligerent  in  his  own 
favor,  is  removed  if  a  Court  of  Admiralty  allows  to  the  neutral  the 
same  indulgence  which  the  belligerent  has  reserved  to  himself  or 
granted  to  his  enemy.     But  their  lordships  have  great  difficulty  in 


808  BELLIGERENTS   AND   NEUTRALS.  [PART  II. 

assenting  to  this  proposition.  In  the  first  place,  the  particular  relaxa- 
tion, which  may  be  of  the  greatest  value  to  the  belligerents,  may  be  of 
little  or  no  value  to  the  neutral.  In  the  instance  now  before  the  court 
it  may  have  been  of  the  utmost  importance  to  Great  Britain  that  there 
should  be  brought  into  her  ports  cargoes  which,  at  the  institution  of 
the  blockade,  were  in  Riga ;  and  it  may  have  been  for  her  advantage, 
Avith  that  view,  to  relax  the  blockade.  But  a  relaxation  of  the  block- 
ade to  that  extent,  and  a  permission  to  neutrals  to  bring  such  cargoes 
to  British  ports  may  have  been  of  little  or  no  value  to  neutrals. 

The  counsel  on  both  sides  at  their  lordships'  bar  understood  that 
the  learned  judge  in  this  case  intended  thus  to  limit  the  rights  of 
neutrals,  and  to  place  neutral  vessels  only  in  the  same  situation  as 
Kussians,  under  the  Order  in  Council.  Their  lordships  would  be 
inclined  to  give  a  more  liberal  interpretation  to  the  language  of  the 
judgment;  yet  if  this  be  done,  the  allowance  of  a  general  freedom  of 
commerce,  by  way  of  export,  to  all  vessels  and  to  all  places  from  a 
blockaded  port,  seems  hardly  consistent  with  the  existence  of  any 
blockade  at  all. 

Again  it  is  not  easy  to  answer  the  objections  a  neutral  might  make, 
that  the  condition  of  things  which  alone  authorizes  any  interference 
with  his  commerce  does  not  exist,  namel}',  the  necessity  of  interdict- 
ing all  communication  by  wsiy  of  conunerce  with  the  place  in  ques- 
tion ;  that  a  belligerent,  if  he  inflicts  upon  neutrals  the  inconvenience 
of  exclusion  from  commerce  with  such  place,  must  submit  to  the  same 
inconvenience  himself ;  and  that  if  he  is  at  liberty  to  select  particular 
points  in  which  it  suits  his  purpose  that  the  blockade  should  be 
violated  with  immunity,  each  neutral,  in  order  to  be  placed  on  equal 
terms  with  the  belligerent,  should  be  at  liberty  to  make  such  selection 
for  himself. 

But  the  ambiguity  in  which  all  these  questions  are  left  by  the  Order 
in  Council  of  the  15th  of  April ;  the  doubt  whether  the  liberty  ac- 
corded to  enemies'  vessels  extends  to  neutrals,  and,  if  so,  whether  such 
liberty  is  subject  to  the  same  restrictions,  or  to  any  other  and  what 
restrictions,  affords,  in  the  opinion  of  their  lordships,  another  strong 
argument  against  the  legality  of  the  blockade  in  this  case.  If  a 
partial,  modified  blockade  is  to  be  enforced  against  neutrals,  justice 
seems  to  require  that  the  modifications  intended  to  be  introduced 
should  be  notified  to  neutral  states,  and  that  they  should  be  fully 
apprized  what  acts  their  subjects  may  or  may  not  do.  They  cannot 
reasonably  be  exposed  to  the  hardship  of  either  abstaining  from  all 
commerce  with  a  place  in  such  a  state  of  uncertain  blockade,  or  of 
having  their  ships  seized  and  sent  to  the  country  of  the  belligerent, 
in  order  to  learn  there,   from  the  decision  of  its  Court  of  Admiralty, 


CHAP.  III.]  THE   "  FIIANCISKA."  809 

whether  the  conduct  they  have  pursued  is,  or  is  not,  protected  by  an 
equitable  interpretation  of  an  instrument  in  which  they  are  not 
expressly  included. 

If  these  views  of  the  law  be  correct,  this  ship  cannot  be  considered 
to  have  had  notice  of  any  blockade  of  Eiga  at  the  time  when  she 
sailed  for  that  port ;  for,  in  truth,  no  legal  blockade  was  then  in  exis- 
tence, and  it  would  be  hard  to  require  a  neutral  to  speculate  on  the 
probability,  however  great,  of  a  legal  blockade  de  facto  being  established 
at  a  future  time,  when  he  is  not  permitted  to  speculate  on  the  chance 
of  its  discontinuance  after  he  has  once  had  notice  of  its  existence. 

Supposing,  however,  the  blockade  in  this  case  to  be  open  to  no 
objections  in  point  of  law  during  the  interval  between  the  loth  of 
April  and  the  loth  of  May,  it  remains  to  be  inquired  whether  the 
notice  which  this  ship  received  of  its  existence  was  of  such  a  character 
as  to  subject  her  to  the  penalty  of  confiscation  for  disregarding  it. 
Xotice  has  been  imputed  to  the  claimant  in  the  court  below  from  the 
alleged  notoriety  of  the  blockade  on  the  14tli  of  ^May,  at  Elismore, 
where  the  ship  touched,  and  at  Copenhagen,  where  the  owner  resided. 

It  is  contended  by  the  appellant  that  in  a  case  of  ingress  of  a  port 
subject  to  a  blockade  only  de  facto  of  which  there  has  not  been  any 
official  notification,  guilty  knowledge  cannot  be  inferred  in  an  individ- 
ual from  general  notoriety,  and  that  a  ship  is  always  entitled  under 
such  circumstances  to  warning  from  the  blockading  squadron  before 
she  is  exposed  to  seizure. 

To  this  proposition  their  lordships  are  unable  to  accede.  If  a 
blockade  de  facto  be  good  in  law  without  notification,  and  a  wilful 
violation  of  a  known  legal  blockade  be  punishable  with  confiscation  — 
propositions  which  are  free  from  doubt,  —  the  mode  in  which  the 
knowledge  has  been  acquired  by  the  offender,  if  it  be  clearh-  proved  to 
exist,  cannot  be  of  importance.  Xor  does  there  seem  for  this  purpose 
to  be  much  difference  between  ingress,  in  which  a  warning  is  said  to 
be  indispensable,  and  egress,  in  which  it  is  admitted  to  be  unnecessary. 

The  fact  of  knowledge  is  capable  of  much  easier  proof  in  the  one 
case  than  in  the  other  ;  but  when  once  the  fact  is  clearly  proved,  the 
consequences  must  be  the  same.  The  reasoning  of  the  learned  judge 
of  the  court  below  in  this  case,  and  the  language  of  Lord  Stowell  in 
The  Adelaide  reported  in  the  note  to  The  Nejjtunus,  2  Rob.  Ill, 
and  Tlie  Hurtig  Hane,  3  Rob.  324,  are  conclusive  upon  this  point. 

But  while  their  lordships  are  quite  prepared  to  hold  that  the  exis- 
tence and  extent  of  a  blockade  may  be  so  well  and  so  generally  known 
that  knowledge  of  it  in  an  individual  may  be  presumed  without  distinct 
proof  of  personal  knowledge,  and  that  knowledge  so  acquired  may  sup- 
ply the  place  of  a  direct  communication  from  the  blockading  squadron, 


810  BELLIGERENTS    AND   NEUTRALS.  [PART  II. 

yet  the  fact,  with  notice  of  which  the  individual  is  so  to  be  fixed,  must 
be  one  which  admits  of  no  reasonable  doubt.  "Any  communication 
which  brings  it  to  the  knowledge  of  the  party,"  to  use  the  language  of 
Lord  Stowell  in  The  Rolla,  6  Rob.  367,  "  in  a  way  which  could 
leave  no  doubt  in  his  mind  as  to  the  autlienticity  of  the  information." 

Again,  the  notice  to  be  inferred  from  general  notoriety,  must  be  of 
such  a  character  that  if  conveyed  by  a  distinct  intimation  from  a  com- 
j  petent  autliority  it  would  have  been  binding.  The  notice  cannot  be 
more  effectual  because  its  existence  is  presumed,  than  it  would  be  if  it 
were  directly  established  in  evidence.  The  notice  to  be  inferred  from 
the  acts  of  a  belligerent,  which  is  to  supply  the  place  of  a  public  noti- 
fication, or  of  a  particular  warning,  must  be  such  as,  if  given  in  the 
form  of  a  public  notification,  or  of  a  particular  warning,  would  have 
been  legal  and  effectual. 

For  this  purpose  the  notice  of  the  blockade  must  not  be  more  exten- 
sive than  the  blockade  itself.  A  belligerent  cannot  be  allowed  to  pro- 
claim that  he  has  instituted  a  blockade  of  several  ports  of  the  enem}', 
Avhen  in  truth  he  has  only  blockaded  one  ;  such  a  course  would  intro- 
duce all  the  evils  of  what  is  termed  a  paper  blockade,  and  would  be 
attended  with  the  grossest  injustice  to  the  commerce  of  neutrals.  Ac- 
cordingly, a  neutral  is  at  liberty  to  disregard  such  a  notice,  and  is  not 
liable  to  the  penalties  attending  a  breach  of  blockade,  for  afterwards 
attempting  to  enter  the  port  which  really  is  blockaded. 

This  was  distinctly  laid  down  by  Lord  Stowell  in  the  case  of  The 
Henrick  and  Maria,  1  Rob.  148,  where  an  officer  of  the  blockading 
squadron  had  informed  a  neutral  that  all  the  Dutch  ports  were  in  a 
state  of  blockade,  whereas  the  blockade  was  confined  to  Amsterdam. 
The  ship  was  afterwards  captured  for  an  alleged  attempt  to  enter 
Amsterdam,  and  Lord  Stowell,  in  decreeing  restitution,  observed  :  "The 
notice  is,  I  think,  in  point  of  authority,  illegal  ;  at  the  time  when  it 
was  given  there  was  no  blockade  which  extended  to  all  the  Dutch  ports. 
A  declaration  of  blockade  is  a  high  act  of  sovereignty  ;  and  a  com- 
mander of  a  King's  ship  is  not  to  extend  it.  The  notice  is,  also,  I 
think,  as  illegal  in  effect  as  in  authority  :  it  cannot  be  said  that  such  a 
notice,  though  bad  for  other  ports,  is  good  for  Amsterdam.  It  takes 
from  the  neutral  all  power  of  election  as  to  what  otlier  port  of  Holland 
he  should  go,  when  he  found  the  port  of  his  destination  under  block- 
ade. A  commander  of  a  ship  must  not  reduce  a  neutral  to  this  kind 
of  distress;  and  I  am  of  opinion,  that  if  the  neutral  had  contravened 
the  notice,  he  would  not  have  been  subject  to  condemnation." 

The  authority  of  this  case  is  fully  recognized  by  Dr.  Lushington  in 
the  present  case,  who  observes  that  such  an  administration  of  law  in 
protecting  the  party  misled,  was  most  just. 


CHAP.  III.]  THE    "  GERASIMO."  811 

Applying  these  principles  to  the  evidence  before  them,  theii-  lord- 
sliips  can  have  no  doubb  that  the  master  and  owner  in  this  case  are  to 
be  fixed  with  notice  of  all  that  was  publicly  known  at  Copenhagen  on 
the  14:th  of  May,  on  the  subject  of  the  blockade ;  that  it  was  known 
there  that  merchant  vessels  had  been  turned  back  from  ports  on 
the  coast  of  Courland,  and  that  a  general  impression  prevailed  that 
vessels  seeking  to  enter  Russian  ports  ran  great  risk  of  seizure  ;  and 
that  the  owner  in  this  case  shared  that  impression,  and  that  to  this 
cause  are  to  be  attributed  the  want  of  proper  ships'  papers,  which  has 
been  already  alluded  to,  and  the  absence,  on  the  further  proof,  of  any 
affidavit  on  the  part  of  the  owner  denying  knowledge  of  the  blockade. 

But  it  is  contended  by  the  appellant  that  the  impression  which  thus 
prevailed  at  Copenhagen  (if,  in  fact,  there  existed  any  general  impres- 
sion), on  the  14th  of  May  was,  and  of  necessity  from  the  acts  of  the 
belligerent  powers  must  have  been,  not  that  the  ports  of  Libau, 
Windau,  and  the  gulf  of  Riga  were  blockaded  (which  they  really  were), 
but  that  all  the  Russian  ports  in  the  Baltic  were  blockaded,  which  they 
certainly  were  not ;  and  that  a  notice  to  be  gathered  from  such  errone- 
ous impressions,  was,  on  the  principles  already  referred  to,  of  no  effect.^ 

It  is  clear,  therefore,  that  the  real  state  of  the  blockade  could  not 
have  been  known  at  Copenhagen  on  the  14th  May,  and  that  the  only 
notice  which  the  master  could  receive  at  that  port,  at  that  time,  would 
be,  that  he  must  not  sail  for  any  of  the  Russian  ports ;  a  notice  which, 
if  he  had  received  it  from  a  British  officer,  he  could  not,  on  the  princi- 
ples already  stated,  be  punished  for  disregarding. 

The  view  which  their  lordships  have  taken  of  this  part  of  the  case 
makes  it  unnecessary  for  them  to  advert  to  the  many  other  important 
points  which  were  argued  at  their  bar.  They  must  advise  a  restitution 
of  the  ship  (or  rather  the  proceeds,  for  it  appears  to  have  been  sold) 
and  of  the  freight,  but  certainly  without  any  costs  or  damages  to  the 
claimant.  There  will  be  simple  restitution,  without  costs  or  expenses 
to  either  party. 


THE   "GERASIMO." 

Privy   Couxcil,  1857. 

(11  Moore's  Privy  Council,  88.) 

A  ship  under  Wallachian  colors,  with  a  cargo  of  corn  belonging  to 
the  owners  residing  at  Galatz  in  Moldavia,  was  seized  for  breach  of 

1  The  learned  judge's  examination  of  the  evidence  of  knowledge  in  Cophenhagen 

of  the  blockade  in  question  is  omitted.  —  Ed. 


812  BELLIGERENTS    AND    NEUTRALS.  [PART  U. 

the  Black  Sea  blockade,  when  coining  out  of  the  Sulina  mouth  of  the 
Danube  then  in  a  state  of  blockade.  At  the  time  of  the  shipment  of 
the  cargo  the  Russians  held  possession  of  ^loldavia  and  Wallachia,  but 
such  holding  was  with  the  express  intention  of  not  changing  the 
national  character,  or  incorporating  that  country  with  Russia.  From 
the  decree  of  condemnation  in  the  High  Court  of  Admiralty  an  appeal 
was  taken  to  the  Privy  Council.^ 

The  Right  Hon.  T.  Pembeutox  Leigh:  "  — 

Upon  the  present  appeal  the  first  question  is,  whether  the  owners  of 
the  cargo,  in  regard  to  this  claim,  are  to  be  considered  as  alien  enemies ; 
and  for  this  purpose  it  will  be  necessary  to  examine  carefully  both  the 
principles  of  law  which  are  to  govern  the  case,  and  the  nature  of  the 
possession  which  the  Russians  held  of  Moldavia  at  the  time  of  this 
shipment. 

Upon  the  general  principles  of  law  applicable  to  this  subject  there 
can  be  no  dispute.  The  national  character  of  a  trader  is  to  be  decided 
for  the  purposes  of  the  trade,  by  the  national  character  of  the  place  in 
which  it  is  carried  on.  If  a  war  breaks  out,  a  foreign  merchant  carry- 
ing on  trade  in  a  belligerent  country  has  a  reasonable  time  allowed  him 
for  transferring  himself  and  his  property  to  another  country.  If 
he  does  not  avail  himself  of  the  opportunity*,  he  is  to  be  treated,  for 
the  purposes  of  the  trade,  as  a  subject  of  the  power  under  whose 
dominion  he  carries  it  on,  and,  of  course,  as  an  enemy  of  those  with 
whom  that  power  is  at  war.  Nothing  can  be  more  just  than  this  prin- 
ciple ;  but  the  whole  foundation  of  it  is,  that  the  country  in  which  the 
merchant  trades  is  enemy's  country. 

Xow  the  question  is,  what  are  the  circumstances  necessary  to  con- 
vert friendly  or  neutral  territory  into  enemy's  territory  ?  For  this 
purpose,  it  is  sufficient  that  the  territory  in  question  should  be  occupied 
by  a  hostile  force,  and  subject,  during  its  occupation,  to  the  control  of 
the  hostile  power,  so  far  as  such  power  may  think  fit  to  exercise  con- 
trol ;  or  is  it  necessary  that,  either  by  cession  or  conquest,  or  some 
other  means,  it  should,  either  permanently  or  temporarily,  be  incorpo- 
rated with,  and  form  part  of,  the  dominions  of  the  invader  at  the  time 
when  the  question  of  national  character  arises  ? 

It  appears  to  their  lordships  that  the  first  opposition  cannot  be 
maintained.  It  is  impossible  for  any  judge,  however  able  and  learned, 
to  have  always  present  to  his  mind  all  the  nice  distinctions  by  which 
general  rules  are  restricted;  and  their  lordships  are  inclined  to  think 
that  if  the  authorities  which  were  cited  and  so  ably  commented  upon 
at  this  bar  had  been  laid  before  the  judge  of  the  court  below,  he  would, 

1  Short  statement  substitutcfl  for  tli.it  of  tlie  report. — Ed. 

2  Only  part  of  the  opinion  of  tiie  learned  judge  is  given.  —  Ed. 


CHAP.  III.]  THE   "GERASIMO."  813 

perhaps,  have  qualified  in  some  degree  the  doctrine  attributed  to  him 
in  the  judgment  to  which  we  have  referred. 

"With  respect  to  the  meaning  of  the  term  '' dominion  of  the  enemy," 
and  wliat  is  necessary  to  constitute  dominion,  Lord  Stowell  has  in 
several  cases  expressed  his  opinion.  In  the  case  of  The  Fama.,  o  Hob. 
115,  he  lays  it  down  that  in  order  to  complete  the  right  of  property, 
there  must  be  both  right  to  the  thing  and  possession  of  it ;  hot\\  jus  ad 
rem  and^^s  in  re.  "  This,"  he  observes,  "  is  the  general  law  of  prop- 
erty, and  applies,  I  conceive,  no  less  to  the  right  of  territory  than  to 
other  rights.  Even  in  newly  discovered  countries,  Avhen  a  title  is 
meant  to  be  established  for  the  first  time,  some  act  of  possession  is 
usually  done  and  proclaimed  as  a  notification  of  the  fact.  In  transfer, 
surely,  when  the  former  rights  of  others  are  to  be  superseded  and  ex- 
tinguished, it  cannot  be  less  necessary  that  such  a  change  should  be 
indicated  by  some  public  acts,  that  all  who  are  deeply  interested  in  the 
event,  as  the  inhabitants  of  such  settlements,  may  be  informed  under 
whose  dominion  and  under  what  laws  they  are  to  live." 

The  importance  of  this  doctrine  will  appear  when  the  facts  with  re- 
spect to  the  occupation  of  the  principalities  come  to  be  examined. 

That  the  national  character  of  a  place  is  not  changed  by  the  mere 
circumstance  that  it  is  in  possession  and  under  the  control  of  a  hostile 
force,  is  a  principle  held  to  be  of  such  importance  that  it  was  acted 
upon  by  the  lords  of  appeal  in  1808,  in  the  St.  Domingo  cases  of  the 
Daj't  and  Ha^jpy  Couple,  when  the  rule  operated  with  extreme  hard- 
ship. 

In  the  case  of  The  Manilla,  1  Edw.  3,  Lord  Stowell  gives  the  fol- 
lowing account  of  those  decisions  :  "Several  parts  of  it  (the  island  of 
St.  Domingo)  had  been  in  the  actual  possession  of  insurgent  negroes, 
who  had  detached  them,  as  far  as  actual  occupancy  could  do,  from  the 
mother  country  of  France  and  its  authority,  and  maintained,  within 
those  i^arts,  at  least,  an  independent  government  of  their  own.  And 
although  this  new  power  had  not  been  directl}'  and  formally  recognized 
by  an  express  treaty,  the  British  Government  had  shown  a  favorable 
disposition  towards  it  on  the  ground  of  its  common  opposition  to 
France,  and  seemed  to  tolerate  an  intercourse  that  carried  with  it  a 
pacific  and  even  friendly  complexion.  It  was  contended,  therefore, 
that  St.  Domingo  could  not  be  considered  as  a  colony  of  the  enemy. 
The  Court  of  Appeal,  however,  decided,  though  after  long  deliberation, 
and  with  much  expressed  reluctance,  that  nothing  had  been  done  or 
declared  by  the  British  Government  that  could  authorize  a  British  tri- 
bunal to  consider  this  island  generally,  or  parts  of  it  (notwithstanding 
a  power  hostile  to  France  had  established  itself  within  it,  to  that 
degree  of  force,  and  with  that  kind  of  allowance  from  some  other 


814  BELLIGEEENTS   AND   NEUTRALS.  [PART  U. 

states),  as  being  other  than  still  a  colony  of  the  enemy.  There  can  be 
no  doubt  that  the  strict  principle  of  tlie  decision  was  correct." 

On  the  other  hand,  when  places  in  a  friendly  country  have  been 
seized  by,  and  are  in  the  possession  of  the  enemy,  the  same  doctrine 
.   has  been  held. 

While  Spain  was  in  the  occupation  of  France,  and  at  war  with  Great 
Britain,  the  Spanish  insurrection  broke  out,  and  the  British  Govern- 
ment issued  a  proclamation  that  all  hostilities  against  Spain  should 
immediately  cease.  Great  part  of  Spain,  however,  was  still  occupied 
by  French  troops,  and  amongst  others,  the  port  of  St.  Andero.  A  ship 
called  the  Santa  Anna  was  captui'cd  on  a  voyage,  as  it  was  alleged,  to 
St.  Andero,  and  Lord  Stowell  (1  Edw.  182)  observed :  "  Under  these 
public  declarations  of  the  state,  establishing  this  general  peace  and 
amity,  I  do  not  know  that  it  would  be  in  the  power  of  the  court  to 
condemn  Spanish  property,  though  belonging  to  persons  resident  in 
those  parts  of  Spain  which  are  at  the  present  moment  under  French 
control,  except  under  such  circumstances  as  would  justify  the  confisca- 
tion of  neutral  property." 

The  same  principle  has  been  acted  upon  in  the  courts  of  common 
law. 

In  the  case  of  Donaldson  v.  Thompson,  1  Campb.  429,  the  Eussian 
troops  were  in  possession  of  Corfu  and  the  other  Ionian  Islands, 
though  the  form  of  a  republic  was  preserved,  and  it  was  contended 
that  the  islands  must  be  considered  as  substantially  part  of  the  terri- 
tory of  the  Russian  Empire,  if  the  Russian  power  was  there  dominant, 
and  the  supreme  authority  was  in  the  Russian  commander ;  or,  if  not, 
that  the  republic  must  be  considered  as  a  co-belligerent  with  Russia 
against  the  Porte,  since  the  Emperor  of  Russia  derived  the  same 
advantages,  in  a  military  point  of  view,  from  this  occupation  of  the 
islands  as  if  he  had  seized  it  hostilely,  or  the  Ionian  republic  had  been 
his  ally  in  the  war  he  was  carrying  on.  Both  these  propositions,  how- 
ever, were  repudiated  by  Lord  Ellenborough  ;  and  afterwards,  on  a 
motion  to  set  aside  the  verdict  by  the  court  of  King's  Bench,  Lord 
Ellenborough  observed :  "  Will  any  one  contend  that  a  government 
which  is  obliged  to  yield  in  any  quarter  to  a  superior  force  becomes  a 
co-belligerent  with  the  power  to  which  it  yields  ?  It  may  as  well  be 
contended  tliat  neutral  and  belligerent  mean  the  same  thing."  The 
same  doctrine  was  afterwards  laid  down  by  the  Court  of  King's  Bench, 
in  Hatjedoni  v.  Bell,  1  Mau.  and  Sel.  450,  in  the  case  of  a  trade  carried 
on  with  Hamburg,  which  had  been  for  several  years,  and  at  the  time 
was  in  the  military  occupation  of  tlie  French. 

Tlie  distinction  between  hostile  occupation  and  possession  clothed 
{  with  a  legal  right  by  cession  or  conquest,  or  confirmed  by  length  of 


CHAP.  III.]  THE   "GERASIMO."  815 

time,  is  recognized  by  Lord  Stowell  in  the  case  of  The  BoUetta,  1  Edw. 
171.  A  question  there  arose  whether  certain  property  belonging  to 
merchants  at  Zante,  which  had  been  captured  by  a  British  privateer, 
was  to  be  considered  as  French  or  as  Russian  property,  that  question 
depending  upon  the  national  character  of  Zante  at  the  time  of  the  cap- 
ture. Lord  Stowell  observes,  p.  173  :  "  On  the  part  of  the  Crown  it 
has  been  contended  that  the  possession  taken  by  the  French  was  of  a 
forcible  and  temporar}'  nature,  and  that  such  possession  does  not 
change  the  national  character  of  the  country  until  it  is  confirmed  by  a 
formal  cession,  or  by  long  lapse  of  time.  That  ma}^  be  true,  when  pos- 
session has  been  taken  by  force  of  arms  and  by  violence ;  but  this  is 
not  an  occupation  of  that  nature.  France  and  Russia  had  settled 
their  differences  by  the  treaty  of  Tilsit,  and  the  two  countries  being 
at  peace  with  each  other,  it  must  be  understood  to  have  been  a  voluntary 
surrender  of  the  territory  on  the  part  of  Russia."  On  this  ground  he 
held  the  territory  to  have  become  French  territory,  remarking  in  a 
subsequent  passage  of  his  judgment  that  this  was  a  cession  by  treaty, 
and  not  a  hostile  occupation  by  force  of  arms,  liable  to  be  lost  again 
the  next  day. 

These   authorities,  with   the  other  cases  cited  at  the  bar,  seem  to 
establish   the    proposition,    that   the  mere    possession    of   a   territory  j 
by  an  enemy's  force  does  not  of  itself  necessarily  convert  the  territory  .-l 
so  occupied  into  hostile  territory,  or  its  inhabitants  into  enemies. 

The  ground  now  suggested  is,  that  The  Gerasimo  was  guilty  of  a 
break  of  blockade  in  coming  out  of  the  Danube  when  the  mouths 
of  that  river  were  in  a  state  of  notified  blockade.  It  is  singular  that 
if  this  were  the  ground  of  capture,  no  notice  Avhatever  of 
the  blockade  should  have  been  continued  in  the  affidavit  origi- 
nally prepared  for  Captain  Powell  to  swear  Avhen  the  seizure 
was  made,  and  the  facts  recent ;  that  notice  of  it  should  be 
introduced  for  the  first  time  in  the  affidavit  made  by  him  on  the  30th 
of  August,  1855;  and  that  even  in  that  late  affidavit  it  is  not  stated 
that  breach  of  blockade  was  the  cause  of  the  seizure. 

There  is  no  doubt,  however,  that  breach  of  blockade,  whether  it 
was  the  cause  of  seizure  or  not,  may  be  used  as  ground  of  con- 
demnation, if  the  circumstances  of  the  case  bring  it  within  the  law. 

What,  then,  were  the  circumstances  ?  In  the  summer  of  1854,  the 
Russian  forces  in  the  Turkish  territories  were  straitened  for  pro- 
visions. The  allied  fleets  desired  to  prevent  the  importation  of 
provisions  up  the  Danube,  and  with  that  view  the  two  admirals  in 
command  of  the  English  and  French  fleets  issued  a  proclamation, 
dated  the  2d  of  June,  1854,  in  which  they  declared,  to  all  whom  it 
might  concern,  that  they  had  established  an  effective  blockade  of  the 


816  BELLIGERENTS    AND   NEUTRALS.  [PART  II. 

Danube,  in  order  to  stop  all  transport  of  provisions  to  the  Eussian 
armies;  they  declared  that  this  blockade  included  all  those  mouths  of 
the  Danube  which  communicate  with  the  Black  Sea,  and  they  apprized 
all  vessels  of  every  nation  that  they  will  not  be  able  to  enter  the 
river  till  further  orders  (quails  ne  pourront  entrer  dans  ce  fleuve 
jusqii'a  nouvel  ordre). 

On  the  26th  of  June,  the  Eussians  forbade  all  export  of  cereals 
after  the  2d  of  July.  Any  exportation  of  cereals,  therefore,  was  in 
furtherance  of  the  objects  of  the  allies,  and  to  the  prejudice  of  the 
Eussians.  Could  a  Moldavian  merchant  imagine,  if  he  had  heard  of 
this  blockade,  that  he  was  to  be  liable  to  capture  by  the  allies  for 
exporting  provsions,  when  the  whole  purpose  of  the  blockade  was  de- 
clared to  be  to  prevent  their  import  ? 

1  But,  by  the  rules  of  law,  when  a  ship  has  entered  a  blockaded  port 
before  the  blockade,  she  is  entitled  to  come  out  again ;  and  if  she  has  a 

.  cargo  taken  on  board  before  notice  of  the  blockade,  she  is  entitled  to 

j  bring  it  out.  The  blockade  of  a  port  is  jjrima  facie  evidence  of  the 
existence  of  the  blockade  to  all  who  are  within  it,  because  the 
inhabitants  who  see  the  blockading  ships  off  their  coast  cannot  be  well 
ignorant  of  the  blockade.  But  this  was  no  blockade  of  the  port  of 
Gahitz,  but  a  blockade  of  the  mouths  of  the  Danube,  Galatz  lying  on 
its  banks  up  the  river,  at  a  distance  of  150  miles  from  its  mouth. 

In  this  case  the  ship  had  entered  the  river  before  the  blockade  ;  the 
cargo  was  taken  on  board  on  the  30th  of  June  ;  and  the  ship  must 
have  sailed  on  or  before  the  2d  of  Juh*;  otherwise  she  would  have 
been  detained  by  the  Eussians.     If  she  had  no  notice  of  the  blockade, 

,  she  was,  on  that  general  ground,  entitled  to  bring  out  her  cargo  ;  if  she 
had  notice,  she  never  could  suppose  that,  according  to  the  notification, 
she  could  be  liable  to  capture;  but  if  the  case  had  been  open  to  any 
suspicion,  when  the  claimant  has  been  deprived,  by  the  wrongful  act  of 
the  captors,  of  the  opportunity  of  affording  the  explanations  wliich  the 
rules  of  law  were  intended  to  secure  him. 

Of  the  law  applicable  to  the  case,  as  it  appears  to  their  lordships, 
they  cannot  express  their  opinion  better  than  in  the  language  used  by 
the  learned  judge  of  the  court  below,  in  the  beginning  of  his 
judgment  on  the  hearing  before  him.  He  says:  "On  the  part  of 
the  claimants,  a  very  long  argument  was  addressed  to  tlie  court, 
impugning  the  conduct  of  the  captors,  and  charging  them  with  having 
improperly  brought  the  vessel  to  Constantino{)le.  It  has  been  further 
stated  that  there  being  no  means  of  examining  witnesses  at  Con- 
stantinople, great  unnecessary  delay  had  occurred,  and  that  the 
captors  were  responsible  for  such  delay  and  all  the  consequences. 
The   court   is    not   disposed   to   deny    the   truth   and   justice   of   the 


CHAP.  III.]  THE  "  NANCY."  817 

principle  contended  for;  on  the  contrary,  I  am  clearly  of  the  opinion, 
that  if  a  delay  in  bringing  to  adjudication,  and  the  non-examination 
of  witnesses,  arise,  though  it  may  be  almost  impossible  for  the 
government  of  the  belligerent  nation  to  prevent  such  occurrence,  still 
that  neutrals  ought  to  be  indemnified  if  injustice  has  been  done  them. 
The  captors  in  the  first  instance,  though  they  may  be  perfectly  blame- 
less, are  responsible  to  th5  neutrals,  and  they  must  look  to  their  own 
government  for  redress,  if  they  have  been  compelled  to  make  good  any 
injury  sustained  by  neutrals,  in  consequence  of  their  fulfilling  the 
commands  which  they  dare  not  disobey.  In  many  cases  the  captains 
of  some  of  her  Majesty's  cruisers  may  have  a  discretion  to  release  at 
once,  but  this  may  not  be  so  in  case  of  a  blockade,  when  special 
orders  may  have  been  given  to  capture  and  detain." 

In  this  statement  of  the  principles  of  law,  their  lordships  cordially 
concur.  What  claim  the  captor,  Captain  Powell,  may  have  upon  her 
Majesty's  Government,  it  is  not  their  duty  to  judge,  nor  have  they  an}^ 
means  of  forming  an  opinion.^  But  as  regards  the*  claimants,  his 
conduct  appears  to  be  without  an}-  excuse,  and  their  lordships  have  no 
hesitation  in  advising  restitution  of  the  cargo,  with  cost  and  damages 
against  the  captors. 


THE   "NANCY." 

Privy  Council,  1809. 

(1  Acton,  57.) 

This  was  a  case  of  several  appeals  from  Vice- Admiralty  Courts  in 
America  and  the  West  Indies,  condemning-  the  ships  and  cargoes  for 
a  breach  of  the  blockade  of  the  island  of  Martinique,  in  the  year 
1801. 

A  ship,  belonging  to  American  citizens,  sailed  from  Xew  York  for 
St.  Pierre,  in  Martinique,  unless  the  same  should  be  blockaded.  If 
the  island  should  be  blockaded,  the  master  was  to  go  to  St.  Thomas, 
whence  he  was  to  return  to  New  York  with  a  cargo  purchased  with 
the  proceeds  of  the  outward  cargo. 

1  A  commander  of  a  ship  of  war  of  the  United  States,  in  obeying  his  instructions 
from  tiie  President  of  tlie  United  States,  acts  at  his  peril.  If  tiiese  instructions  are 
not  strictly  warranted  hy  law,  lie  is  answerable  in  damages  to  any  persons  injured  by 
tlieir  execution.  Li'tle  et  al.  v.  Barreme  et  al.,  1804,  2  Cr.  170,  per  Marshall,  C.  J. 
This  case  is  distinguished  in  Gar/and  v.  Davis,  4  How.  131,  149,  where  it  is  held  that 
puhlic  agents  arc  not  liable  on  contracts  made  for  i)rincipals  where  no  misfeasance  is 
showu.  —  Ed. 

0-2 


818  BELLIGERENTS    AND    NEUTRALS.  [pART  II. 

Arriving  off  Martinique  tlie  29tli  of  3Iarcli,  and  finding  no  sliip 
tliere,  and  not  being  given  to  understand  tliat  tliere  existed  any 
blockade  at  tliat  time,  he,  in  consequence  of  tlie  vessel's  having 
sprung  a  leak,  repaired  to  the  port  of  Trinity,  in  that  island,  to  refit ; 
from  whence  he  sailed  to  St.  Pierre,  arriving  the  3d  of  April. 

While  in  the  island  he  heard  of  no  blockade,  and  no  vessel  of  war 
had  appeared  off  the  island  during  his  stay. 

Having  completed  his  cargo  on  the  15th,  he  sailed  for  New  York, 
and  was  captured  and  carried  into  Halifax,  in  Xova  Scotia,  where 
the  vessel  and  cargo  were  condemned  as  prize. 

This  statement  was  supported  by  the  evidence  of  a  passenger  on 
board  the  vessel,  by  some  of  the  crew,  and  by  the  tenor  of  a  cor- 
respondence between  persons  in  France,  New  York,  and  Martinique; 
which  proved  that  the  blockade  was  -at  that  time  removed,  or  left  so 
far  relaxed  that  no  armed  vessels  had  been  seen  off  these  ports  dur- 
ing the  period  the  vessel  remained  in  the  island. 

For  the  capfors  it  was  contended  that,  although  the  blockading 
fleet  had  been  dispatched  to  Surinam,  a  force  had  been  left  off  the 
island  to  continue  the  blockade  and  apprise  vessels  of  its  existence. 
This  appeared,  even  by  the  correspondence  exhibited  by  the  claim- 
ants, one  of  the  letters  admitting  that  a  British  fifty-gun  ship  con- 
tinned  off  the  island,  and  was  now  and  then  seen  by  the  inhabitants. 

Judgment.  —  Sir  William  Grant:  — 

The  court  held  that,  to  constitute  a  blockade,  the  intention  to  shut 
up  the  port  should  not  only  be  generally  made  known  to  the  vessels 
navigating  the  seas  in  the  vicinity,  but  that  it  was  the  duty  of  the 
blockaders  to  maintain  such  a  force  as  would  be  of  itself  sufficient 
to  enforce  the  blockade.  This  could  only  be  effected  by  keeping  a 
nuiiiber  of  vessels  on  the  different  stations,  so  communicating  with 
each  other  as  to  be  able  to  intercept  all  vessels  attempting  to  enter 
the  ports  of  the  island.  In  the  present  instance  no  such  measures 
had  been  resorted  to,  and  this  neglect  necessarily  led  neutral  vessels 
to  believe  these  ports  might  be  entered  without  any  risk.  The  peri- 
odical appearance  of  a  vessel  of  war  in  the  offing  could  not  be  sup- 
posed a  continuation  of  a  blockade,  which  the  correspondence  men- 
tioned had  described  to  have  been  previously  maintained  by  a 
number  of  vessels  ;  and  with  such  unparalleled  rigor,  that  no  vessel 
whatever  had  been  able  to  enter  the  island  during  its  continuance. 
Their  Lordships  were  therefore  pleased  to  order  that  the  ship  should 
be  restored,  the  proof  of  property  being  sufficient,  but  directed  fur- 
ther proof  as  to  the  cargo  claimed  for  the  American  citizens 
mentioned. 


CHAP.  III.]  THE   "  OCEAN."  819 

THE  «  OCEAN." 
High  Court  of  Admiralty,  1801. 

(3  C.  Robinson,  297.) 

This  was  a  question  arising  on  the  blockade  of  Amsterdam,  re- 
specting a  cargo  shipped  for  America  at  Rotterdam.  It  appeared 
that  the  persons  ordering  the  shipment  had  ordered  it  of  their 
agents  at  Amsterdam,  as  a  shipment  to  be  made  there,  subsequent 
to  tlie  date  of  the  blockade  of  that  place,  but  previous  to  the  hlock- 
mU  of  tJie  ports  of  Holland.  It  was  argued  that  in  the  intention  of 
the  claimants  it  was  to  be  an  exportation  actually  from  Amsterdam, 
and  that  in  effect  the  trade  was  the  same,  as  the  goods  were  ordered 
and  purchased  at  Amsterdam,  and  were  to  be  considered  as  part  of 
the  commerce  of  that  place. 

Judgment, — Sir  W.  Scott  : — 

"  I  am  inclined  to  consider  this  matter  favourably,  as  an  exporta- 
tion from  Rotterdam  only,  the  place  in  which  the  cargo  becomes 
first  connected  with  the  ship.  In  what  course  it  had  travelled 
before  that  time,  whether  from  Amsterdam  at  all,  and  if  from  Am- 
sterdam, whether  by  land  carriage  or  by  one  of  their  inland  naviga- 
tions, Rotterdam  bemg  the  port  of  actual  shipment,  I  do  not  think  it 
material  to  inquire.  On  this  view  of  the  case  it  would  be  a  little  too 
rigorous  to  say,  that  an  order  for  a  shipment  to  be  made  at  Amster- 
dam should  be  construed  to  attach  on  the  owner,  although  not  car- 
ried into  effect.  It  has  been  said  from  the  letter  of  the  correspond- 
ent at  Amsterdam,  that  the  agents  there  had  informed  their 
correspondents  in  America  that  the  blockade  was  not  intended  to 
prevent  exportation;  The  representation  of  the  enemy  shipper 
could  not  have  availed  to  exonerate  the  neutral  merchants,  if  other- 
wise liable.  Were  this  to  be  allowed,  it  would  be  in  the  power  of 
the  enemy  to  put  an  end  to  the  blockade  as  soon  as  he  pleased.  If 
the  general  law  is,  that  er/i-ess  as  well  as  ingress  is  proliibited  by 
blockade,  the  neutral  merchant  is  bound  to  know  it ;  and  if  he  en- , 
tertains  any  doubt,  he  must  satisfy  himself  by  applying  to  the  coun- 
try imposing  the  blockade,  and  not  to  the  party  who  has  an  interest  I 
in  breaking  it. 

"  It  happens  in  this  case,  that  the  intended  exportation  did  not 
take  place.  The  only  criminal  act,  if  any,  must  have  been  the  con- 
veyance from  Amsterdam  to  Rotterdam.  It  would  be  a  little  too 
much  to  say,  that  by  that  previous  act  the  goods  sliipped  at  Rotter- 


820  BELLIGERENTS   AND   NEUTRALS.  [PART  IT. 

dam  are  affected.  The  legal  consequences  of  a  blockade  must  de- 
pend on  the  means  of  blockade ;  and  on  the  actual  or  possible  appli- 
cation of  the  blockading  force.  On  the  land  side  Amsterdam  neither 
was  nor  could  be  affected  by  a  blockading  naval  force.  It  could  be 
aj)plied  only  externally.  The  internal  communications  of  the  coun- 
try were  out  of  its  reach,  and  m  no  way  subject  to  its  operation.  If 
the  exportation  of  goods  from  Rotterdam  was  at  this  time  permitted, 
it  could  in  no  degree  be  vitiated  by  a  previous  inland  transmission 
of  them  from  the  city  of  Amsterdam.     Restored."  ^ 

^  Blockade.  —  In  the  case  of  The  Circassian,  1864,  2  Wall.  135,  it  was  lield  that  a 
blockade  may  be  made  effectual  by  batteries  on  shore,  as  well  as  by  ships  afloat,  sup- 
ported by  a  naval  force  sufficient  to  warn  off  innocent,  and  capture  offending,  vessels 
attempting  to  enter. 

Tliat  a  blockade  regular)}'  notified  to  neutral  governments  must,  in  the  absence  of 
clear  proof  of  a  discontinuance  of  it,  be  presumed  to  continue  until  notification  is  given 
b}'  tlie  blockading  government  of  such  discontinuance. 

That  a  vessel  sailing  from  a  neutral  port  with  intent  to  violate  a  blockade  is  liable 
to  capture  and  condemnation  as  prize  from  the  time  of  sailing.  See  also  the  decision 
of  Sir  William  Scott  in  the  case  of  The  Columbia,  1799,  1  C.  Rob.  154. 

See  also  other  early  cases  before.  Sir  Wm.  Scott:  The  Stert,  1801,  4  C.  Rob.  65; 
The  Jonge  Pieter,  1801,  4  C.  Rob.  79;  The  Maria,  1805,  6  C.  Rob.  201;  The  Lisette, 
1807,  6  C.  Rob.  387;  The  Julia,  1811,  1  Dod.  169,  note. 

In  The  Prize  Cases,  18G2,  2  Black.  635  (supra),  it  was  held,  that  it  is  a  settled  rule  that 
a  vessel  in  a  blockaded  port  is  presumed  to  have  notice  of  a  blockade  as  soon  as  it 
commences.  See  also  The  Vrouw  Judith,  1799,  1  C.  Rob.  150.  In  this  case  a  de  /ado 
blockade  may  be  broken  witiiout  notice,  by  egress.  But  persons  entering  a  place 
under  de  facto  blockade  are  entitled  to  warning. 

The  French  rule  in  respect  of  a  violation  of  blockade  differs  essentially  from  tliat 
of  the  United  States  and  England.  Notwithstanding  tliat  a  blockade  has  been  publicly 
proclaimed,  a  ship  sailing  for  a  blockaded  port  is  entitled  to  a  warning,  entered  upon 
her  papers,  and  is  only  liable  to  seizure  and  condemnation  when  she  subsequently 
attempts  to  enter  or  leave  a  blockaded  port.  See  the  cases  of  La  Louisa,  1  Pistoye  et 
Duverdy,  382 ;  and  The  Eliza  Cornish,  id.  387. 

As  to  the  blockades  established  by  the  "orders  in  council,"  during  the  wars  with 
Napoleon  I.,  see  Edwards'  Admiralty  Reports,  381-416,  and  the  appendix  to  that 
volume.     See  also  in  the  same  volume,  pp.  249-251,  and  311-326. 

For  other  cases  on  the  subject  of  blockade,  see  llw  Baii/orri/,  1864,  2  Wall.  474  ; 
The  Cheshire,  1865,  3  Wall.  231,  235;  The  Admiral,  1865,  3  Wail.  604;  The  Peterhoff, 
1866,  5  Wall.  28;  The  Dashimj  Ware,  1866,  5  Wall.  170;  The  Tereslta,  1866,5  Wall. 
180;  The  Pearl,  1866,  5  Wall.  574;  The  Franriska,  Spinks,  111,  and  10  Moore,  1855, 
P.  C.  37;  The  Ilenrick  and  Maria,  1799,  1  C.  Rob.  146.  See  the  careful  digest-note  in 
Tudor,  Mercantile  Cases,  3d  ed.,  1019-1010.  — Ed. 


CHAP.  III.]  THE    "  HELEN."  821 

THE  ''HELEN." 
High  Court    of    Admiralty,    I860. 

{L.  R.  1  Ad.  and  Ecc.  1.) 

In  this  case,  the  master  sued  for  wages  upon  an  agreement  entered 
into  between  himself  and  the  defendants,  tlie  owners  of  the  Helen. 

The  defendants,  in  tlie  fonrtli  article  of  their  answer,  alleged  that 
"the  agreement  was  made  and  entered  into  for  the  purpose  of  run- 
ning the  blockade  of  the  Southern  ports  of  the  United  States  of 
America,  or  one  of  them,  and  was  and  is  contrary  to  law,  and  cannot 
be  recognized  or  enforced  by  this  Honourable  Court." 

Judgment,  by  Dr.  Lushington; — 

"  This  is  a  motion  by  the  plaintiff  to  reject  the  fourth  article  of 
the  defendant's  answer.  The  parties  in  this  cause  are  John  Andrews 
"Wardell,  formerly  the  master  of  the  Helen,  plaintiff,  and  the  Albion 
Trading  Company,  the  owners  of  the  ship,  defendants.  The  master 
sues  for  wages  (with  certain  premiums  added),  alleged  to  have  been 
earned  between  July,  18G4,  and  March,  1865.  The  answer  states 
that  according  to  the  agreement  as  set  forth  by  the  defendants,  the 
plaintiff  has  been  paid  all  that  was  due  to  liim.  This  part  of  the 
answer  is  not  objected  to.  The  fourth  and  last  article  is  the  one 
objected  to.  It  alleges  that  the  agreement  was  entered  into  for  the 
purpose  of  breaking  the  blockade  of  the  Southern  States  of  America ; 
that  such  an  agreement  is  contrary  to  law,  and  cannot  be  enforced 
by  this  Court.  In  the  course  of  the  argument,  the  judgment  in  Hx 
parte  Chavasse  re  Grazebrook,  34  L.  J.  (Bkr.),  17,  was  cited  as  gov- 
erning the  case ;  a  judgment  recently  delivered  by  Lord  Westbury 
whilst  he  was  Lord  Chancellor.  The  law  there  laid  down  is  briefly 
stated,  that  a  contract  of  partnership  in  blockade-running  is  not 
contrary  to  the  municipal  law  of  this  country ;  and  by  the  decree 
the  partnership  was  declared  valid,  and  the  accounts  ordered  ac- 
cordingly. It  was  admitted  that  this  decision  is  directly  applicable 
to  the  present  case,  a  suit  to  recover  wages  according  to  a  contract 
with  respect  to  an  intended  adventure  to  break  the  blockade. 

"  That  a  decision  of  the  Lord  Chancellor  is  to  be  treated  by  this 
court  with  the  greatest  respect  there  can  be  no  doubt,  but  is  it  ab- 
solutely binding  ? 

"  There  are  three  tribunals  whose  decisions  are  absolutely  binding 
upon  the  Court  of  Admiralty  :  1.  The  House  of  Lords.  2.  The  Privy 
Council.     3.  The  Courts  of  Common  Law  when  deciding  upon  the 


822  BELLIGEr.ENTS   AXD   NEUTRALS.  [PART  II. 

construction  of  a  statute.  If  a  decision  of  any  of  these  tribunals  is 
cited,  all  that  the  Court  of  Admiralty  can  do  is  to  inquire  if  the  de- 
cision is  applicable  to  the  case.  If  so,  then  it  is  the  duty  of  the 
Court  to  obey,  whatever  may  be  its  own  judgment. 

"  Xo  other  decisions  are,  I  believe,  absolutely  binding  on  the  Court. 
On  the  present  occasion,  no  decision  has  been  cited  from  the  House 
of  Lords  or  Privy  Council.  Whatever,  therefore,  may  be  the  effect 
of  the  decisions  of  other  tribunals,  I  am  not  relieved  from  the  duty 
of  reconsidering  the  whole  question. 

"  An  intimation  has  been  given  tliat  this  case  will  be  carried  to 
the  Judicial  Committee  ;  if  so,  I  apprehend  that  tiibunal  might  be 
inclined  to  consider  me  remiss  in  my  duty  if  I  had  omitted  to  form 
an  independent  judgment  on  the  case,  and  to  state  it  with  my  rea- 
sons. It  is,  I  conceive,  admitted  on  all  hands,  that  the  Court  must 
enforce  the  agreement  with  the  master,  unless  it  is  satisfied  that  such 
agreement  is  illegal  by  the  municipal  law  of  Great  Britain.  In  order 
to  prove  this  proposition,  the  defendants  say  that  the  agi*eement  to 
break  the  blockade  by  a  neutral  ship  is,  on  the  part  of  all  persons 
concerned,  illegal  according  to  the  law  of  nations,  and  that  the  law 
of  nations  is  a  part  of  the  municipal  law  of  the  land — ergo^  this  con- 
tract was  illegal  by  municipal  law. 

"Now  a  good  deal  may  depend  on  the  sense  in  which  the  word 
'illegal'  is  used.  I  am  strongly  inclined  to  think  that  the  defend- 
ants attach  to  it  a  more  extensive  meaning  than  it  can  properly  bear, 
or  was  intended  to  bear  by  those  Avho  used  it.  The  true  meaning,  I 
think,  is  that  all  such  contracts  are  illegal  so  far,  that  if  carried  out, 
they  would  lead  to  acts  which  might,  under  certain  circumstances, 
expose  the  parties  concerned  to  such  penal  consequences  as  are 
sanctioned  by  international  law,  for  breach  of  blockade,  or  for  the 
carrying  of  contraband.  If  so,  the  illegality  is  one  of  a  limited  char- 
acter. For  instance  suppose  a  vessel  after  breaking  the  blockade 
completes  her  voyage  home,  and  is  afterwards  seized  on  another 
voyage,  the  original  taint  of  illegality — whatever  it  may  have  been — 
is  purged,  and  the  ship  cannot  be  condemned ;  yet  if  the  voyage 
was,  ah  initio,  wholly  and  absolutely  illegal,  both  by  the  law  of 
nations  and  the  municipal  law,  why  should  its  successful  termina- 
tion purge  the  offence  ?  Let  me  consider  the  relative  situation  of 
the  parties,  A  neutral  country  has  a  right  to  trade  with  all  other 
countries  in  time  of  peace.  One  of  these  countries  becomes  a  bellig. 
erent,  and  is  l)lockaded.  Why  should  the  right  of  the  nentral  be 
affected  by  the  acts  of  the  other  belligerent?  The  answer  of  the 
blockading  power  is  :  'Mine  is  a  just  and  necessary  war,' a  matter 
wliich,  in  ordinary  cases,  tlie  neutral  cannot  question,  'I  must  seize 
contraband,  I  must  enforce  blockade,  to  carry  on  the  war.'     In  this 


CHAP,  in.]  THE    "  HELEN."  823 

state  of  things  there  has  been  a  long  and  admitted  nsage  on  the  part 
of  ail  civilized  states — a  concession  by  both  parties,  the  belligerent 
and  the  neutral — a  universal  usage  -whicli  constitutes  the  law  of 
nations.  It  is  only  with  reference  to  this  usage  that  the  belligerent 
can  interfere  with  the  neutral.  Suppose  no  question  of  blockade  or 
contraband,  no  belligerent  could  claim  a  right  of  seizure  on  the  high 
seas  of  a  neutral  vessel  going  to  the  port  of  another  belligerent, 
however  essential  to  his  interest  it  might  be  so  to  do. 

"  What  is  the  usage  as  to  blockade  ?  There  are  several  conditions 
to  be  observed  in  order  to  justify  the  seizure  of  a  ship  for  breach  of 
blockade.  The  blockade  must  be  effectual  and  (save  accidental  in- 
terruption by  weather)  constantly  enforced.  The  neutral  vessel 
must  be  taken  in  delicto.  The  blockade  must  be  enforced  against 
all  nations  alike,  including  the  belligerent  one.  When  all  the  neces- 
sary conditions  are  satisfied,  then,  by  the  usage  of  nations,  the  bel- 
ligerent is  allowed  to  capture  and  condemn  neutral  vessels  without 
remonstrance  from  the  neutral  state.  It  never  has  been  a  part  of 
admitted  common  usage  that  such  voyages  should  be  deemed  illegal 
by  the  neutral  state,  still  less  that  the  neutral  state  should  be  bound 
to  prevent  them  ;  the  belligerent  has  not  a  shadow  of  right  to  require 
more  than  universal  usage  has  given  him,  and  has  no  pretence  to 
say  to  the  neutral :  '  You  shall  help  me  to  enforce  my  belligerent 
right  by  curtailing  your  own  freedom  of  commerce,  and  making  that 
illegal  by  your  own  law  which  was  not  so  before.'  This  doctrine  is 
not  inconsistent  with  the  maxim  that  the  law  of  nations  is  part  of 
the  law  of  the  land.  The  fact  is,  the  law  of  nations  has  never] 
declared  that  a  neutral  state  is  bound  to  impede  or  diminish  its  own  I 
trade  by  municipal  restriction.  Our  own  F'oreign  Enlistment  Act  is 
itself  a  proof  that  to  constitute  transactions  between  British  subjects, 
when  neutral  and  belligerents,  a  municipal  offence  by  the  law  of 
Great  Britain,  a  statute  was  necessary.  If  the  acts  mentioned  in 
that  statute  were  in  themselves  a  violation  of  municipal  law,  why 
any  statute  at  all  ?  I  am  now  speaking  of  fitting  out  ships  of  war, 
not  of  levying  soldiers,  which  is  altogether  a  different  matter.  Then 
how  stands  the  case  upon  authority?  I  may  here  say,  that  in  prin- 
ciple, there  is  no  essential  difference  whether  the  question  of  breach  j 
of  municipal  law  is  raised  with  regard  to  contraband  or  breach  of  - 
blockade. 

"Mr.  Duer,  'Marine  Insurance,' vol.  I.,  lect.  VII.,  is  the  only  text- 
writer  who  maintains  an  opinion  contrary  to  what  I  have  stated  to 
be  the  law.  He  maintains  it  with  much  ability  and  acuteness,  but  he 
stands  alone.  He  himself  admits  that  an  insurance  of  a  contraband 


824  BELLIGERENTS    AND    NEUTEALS.  [PAIIT  II. 

voyage  is  no  offence  against  municipal  law  of  a  neutral  country,  accord- 
ing to  the  practice  of  all  the  principal  states  of  continental  Eu- 
rope. In  the  American  courts  the  question  has  been  more  than  once 
agitated,  but  with  the  same  result.  In  the  case  of  The  Santissima 
Trinidad,  7  Wheat.,  340,  Mr.  Justice  Story  says  : — '  It  is  apparent 
that,  though  equipped  as  a  vessel  of  war,  she  ( TJie  IndependencJa)  was 
sent  to  Buenos  Ayres  on  a  commercial  adventure,  contraband,  indeed, 
but  in  no  shape  violating  our  laws  or  our  national  neutrality.  If 
captured  by  a  Spanish  ship  of  war  during  the  voyage,  she  would 
have  been  justly  condennied  as  good  prize,  and  for  being  engaged  in 
a  traffic  prohibited  by  the  law  of  nations.  But  there  is  nothing  in 
our  law  or  in  the  law  of  nations  that  forbids  our  citizens  fron  send- 
ing armed  vessels  as  well  as  munitions  of  war  to  foreign  ports  for 
sale.  It  is  a  commercial  adventure  which  no  nation  is  bound  to  pro- 
hibit, and  which  only  exposes  the  persons  engaged  in  it  to  the  penalty 
of  confiscation.'     *    *     * 

" '  There  is  no  pretence  for  saying  that  the  original  outfit  on  the 
voyage  was  illegal.'  Again,  in  llicJuirdson  v.  The  Marine  Inswance 
Company,  6  Mass.,  112,  Pakson^s,  C.  J.,  observes  : — '  The  last  class  we 
shall  mention  is  the  transportation  by  a  neutral  of  goods  contraband 
of  war  to  the  country  of  either  of  the  belligerent  powers.  And  here, 
it  is  said,  that  these  voyages  are  prohibited  by  the  law  of  nations, 
which  forms  a  part  of  the  municipal  law  of  every  state,  and,  conse- 
quently, that  an  insurance  on  such  voyages  made  in  a  neutral  state  is 
prohibited  by  the  laws  of  tliat  state,  and  therefore,  as  in  tlie  case  of 
an  insurance  on  interdicted  commerce,  is  void.  That  there  are  cer- 
tain laws  which  form  a  part  of  tlie  municipal  laws  of  all  civilized 
states,  regulating  their  mutual  intercourse  and  duties,  and  thence 
called  the  law  of  nations,  must  be  admitted  :  as,  for  instance,  the  law 
of  nations  aft'ecting  the  rights  and  the  security  of  ambassadors.  But 
we  do  not  consider  the  law  of  nations,  ascertaining  what  voyages  or 
merchandise  are  contraband  of  war,  as  having  the  same  extent  and 
efi:ect.  It  is  agreed  by  every  civilized  state  that,  if  the  subject  of  a 
neutral  power  shall  attempt  to  furnish  either  of  the  belligei-ent 
sovereigns  with  goods  contraband  of  war,  the  other  may  rightfully 
seize  and  condemn  them  as  prize.  But  we  do  not  know  of  any  rule 
establislied  Ijy  the  law  of  nations  that  tlie  neutral  shipper  of  goods 
contraband  of  war,  is  an  offender  against  his  own  sovereign,  and 
liable  to  be  punished  by  the  municipal  laws  of  his  own  country. 
"When  a  neutral  sovereign  is  notified  of  a  declaration  of  war,  lie  may, 
and  usually  does,  notify  his  subjects  of  it,  with  orders  to  de(;liiie  all 
contraband  trade  with  the  nalioiis  at  war,  dci-lariiig  that,  it'  they  ai'e 
taken  in  it,  he  cannot  protect  tlieiii,  but  not  aiuiounciiig  the  trade  as 


CHAP.  Iir.]  THE    "HELEN."  825 

a  violation  of  his  own  laws.  Should  their  sovereign  offer  to  protect 
them,  his  conduct  Avould  he  incompatible  with  his  neutrality.  And 
as,  on  the  one  hand,  he  cannot  complain  of  the  confiscation  of  his 
subjects'  goods,  so,  on  the  other,  the  power  at  war  does  not  iytqyute 
to  frim  these  practices  of  his  subjects.  A  neuti'al  merchant  is  not 
obliged  to  regard  the  state  of  war  between  other  nations,  but  if  he 
ships  goods  prohibited J*<re  belli,  they  may  be  rightfully  seized  and 
condemned.  It  is  one  of  the  cases  where  two  conflicting  rights  exist, 
which  either  party  may  exercise  without  charging  the  other  with 
doing  wrong.  As  the  transportation  is  not  prohibited  by  tlie  laws 
of  the  neutral  sovereign,  his  subjects  may  lawfully  be  concerned  in 
it ;  and,  as  the  right  of  war  lawfully  authorizes  a  belligerent  power 
to  seize  and  condemn  the  goods,  he  may  lawfully  do  it. '  Lastly,  in 
/Seton,  JIaitland  &  Co.  v.  Loic,  1  Johnson,  5,  Mr.  Justice  Kent  says  : 
• — '  I  am  of  opinion  that  the  contraband  goods  were  lawful  goods, 
and  that  whatever  is  not  prohibited  to  be  exported  by  the  positive 
law  of  the  country  is  lawful.  It  may  be  said  that  the  law  of  nations 
is  part  of  the  municipal  law  of  the  land,  and  that  by  that  law  con- 
traband trade  is  prohibited  to  neutrals,  and,  consequently,  unlaw- 
ful. This  reasoning  is  not  destitute  of  force ;  but  the  fact  is  that 
the  law  of  nations  does  not  declare  the  trade  to  be  unlawful.  It 
only  authorizes  the  seizure  of  the  contraband  articles  by  the  bel- 
ligerent powers.'     *     *     * 

"  In  the  English  Courts  the  only  case  in  which  the  point  has  been 
actually  decided  is  the  recent  case  before  the  Lord  Chaucellor,  which 
I  have  already  adverted  to.  With  regard  to  the  cases  in  Mr.  Duer's 
book,  JSFaylor  v.  Taylor,  Medeiross  v.  Ilill,  it  is  enough  to  say  that,  in 
the  view  which  the  court  eventually  took  of  the  facts,  the  question 
of  law  did  not  arise.  It  is  in  these  two  cases  impossible  to  say  with 
certainty  what  was  the  opinion  of  the  judges  at  nisi  prius. 

"I  cannot  entertain  any  doul)t  as  to  the  judgment  t  ought  to  pro- 
nounce in  this  case.  It  appears  that  principle,  authority,  and  usage 
unite  in  calling  on  me  to  reject  the  new  doctrine  that,  to  carry  on 
trade  with  a  blockaded  port,  is  or  ought  to  be  a  municipal  offence 
by  the  law  of  nations.  I  nmst  direct  the  4th  article  of  the  answer 
to  be  struck  out.  I  cannot  pass  by  the  fact  that  the  attempt  to  intro- 
duce this  novel  doctrine  comes  from  an  avowed  particeps  crbninis, 
who  seeks  to  benefit  himself  by  it.  As  he  has  failed  on  every 
ground,  he  must  pay  the  cost  of  his  experiment." 


826  BELLIGEEEXTS    AXD    NEUTRALS.  [PAET  II. 

THE    '-'ADULA." 
SiTPRKME  Court  of  the  United  States,  1S99. 

(176  United  States,  361.) 

]\[r.  Justice  Brown, ^  after  stating  the  case,  delivered  the  opinion 
of  the  court. 

The  rectitude  of  the  decree  of  tlie  District  Court  condemning  the 
Adula  as  prize  of  war  depends  upon  the  existence  of  a  lawful  and 
effective  blockade  at  Guantanamo,  the  knowledge  of  such  blockade  by 
tliose  in  charge  of  the  vessel,  and  their  intent  in  making  the  voyage 
from  Kingston. 

1.  Xo  blockade  of  Guantanamo  was  ever  proclaimed  by  the  Presi- 
dent, A  proclamation  had  been  issued  June  27,  establishing  a  block- 
ade of  all  ports  ou  the  southern  coast  of  Cuba,  between  Cape  Frances 
on  the  west  and  Cape  Craz  on  the  east,  but  as  both  Santiago  and 
Guantanamo  are  to  the  eastward  of  Cape  Cruz,  they  were  not  in- 
cluded. It  appears,  however,  that  blockades  of  Santiago  and  Guan- 
tanamo were  established  in  the  early  part  of  June  by  order  of  Admiral 
Sampson,  commander  of  the  naval  forces  then  investing  the  ports  on 
the  southern  coast  of  Cuba,  and  were  maintained  as  actual  and  effec- 
tive blockades  until  after  the  capture  of  the  Adula. 

The  legality  of  a  simple  or  actual  blockade  as  distinguished  from  a 
public  or  presidential  blockade  is  noticed  by  writers  upon  interna- 
tional law,  and  is  said  by  Halleck  to  be  "  constituted  merely  by  the 
fact  of  an  investment,  and  without  any  necessity  of  a  public  notitica- 
tion.  As  it  arises  solely  from  facts  it  ceases  when  they  terminate; 
its  existence  must,  therefore,  in  all  cases,  be  established  by  clear  and 
decisive  evidence."  Halleck,  Int.  L.  ch,  23,  sec.  10.  A  de  facto 
blockade  was  also  recognized  as  legal  by  this  court  in  the  case  of  The 
Circassiayi,  2  Wall.  135,  150,  in  which  the  question  arose  as  to  the 
blockade  of  New  Orleans  during  the  civil  war.  In  delivering  the 
opinion  of  the  court,  the  chief  justice  observed:  "There  is  a  dis- 
tinction between  simple  and  public  blockades  which  supports  this 
conclusion.  A  simple  blockade  may  be  established  by  a  naval  officer, 
acting  upon  his  own  discretion  or  under  direction  of  superiors,  with- 
out governmental  notification;  while  a  public  blockade  is  not  only 
established  in  fact,  but  is  notified,  by  the  government  directing  it,  to 
other  governments.  In  the  case  of  a  simple  blockade,  the  captors  are 
bound  to  prove  its  existence  at  the  time  of  capture;  while  in  the  case 

1  Statement  of  case  omitteil,  likewise  part  of  the  opinion.  —  Ed. 


CHAP.  III.]  THE    "  ADULA."  827 

of  a  public  blockade,  the  claimants  are  held  to  proof  of  discontinuance 
in  order  to  protect  themselves  from  the  penalties  of  attempted  viola- 
tion.'' A  like  ruling  was  made  by  Sir  William  Scott  in  the  case  of 
The  Rolla,  6  C.  Rob.  364,  which  was  the  case  of  an  American  ship 
and  cargo,  proceeded  against  for  the  breach  of  a  blockade  at  Monte- 
video, imposed  by  the  British  commander.  It  was  argued,  apparently 
upon  the  authority  of  The  Henrlck  and  Maria,  1  C.  Rob.  123,  that 
the  power  of  imposing  a  blockade  is  altogether  an  act  of  sovereignty 
wliich  cannot  be  assumed  or  exercised  by  a  commander  without 
special  authority.  But  says  the  learned  judge:  "The  court  then 
expressed  its  opinion  that  this  was  a  position  not  maintainable  to 
that  extent;  because  a  commander  going  out  to  a  distant  station  may 
reasonably  be  supposed  to  carry  with  him  such  a  portion  of  sovereign 
authority,  delegated  to  him,  as  may  be  necessary  to  provide  for  the 
exigencies  of  the  service  upon  which  he  is  employed.  On  stations 
in  Europe,  where  government  is  almost  at  hand  to  superintend  and 
direct  the  course  of  operations,  under  which  it  may  be  expedient  that 
particular  hostilities  should  be  carried  on,  it  may  be  different.  But 
in  distant  ports  of  the  world  it  cannot  be  disputed,  I  conceive,  that 
a  commander  must  be  held  to  carr}'  with  him  sufficient  authorit}-  to 
act,  as  well  against  the  commerce  of  the  enemy,  as  against  the  enemy 
himself,  for  the  immediate  purpose  of  reduction."  See  also  The 
Johanna  Maria,  Deane  on  Blockades,  ^Q. 

In  view  of  the  operations  then  being  carried  on  for  the  purpose  of 
destroying  or  capturing  the  Spanish  fleet  and  reducing  Santiago,  we 
think  it  was  competent  for  Admiral  Sampson  to  establish  a  blockade 
there  and  at  Guantanamo  as  an  adjunct  to  such  operations.  Indeed, 
it  would  seem  to  have  been  a  necessity  that  restrictions  should  be 
placed  upon  the  power  of  neutrals  to  carry  supplies  and  intelligence 
to  the  ensray  as  they  would  be  quite  sure  to  do  if  their  ships  were 
given  free  ingress  and  egress  from  these  harbors.  While  there  could 
be  no  objections  to  vessels  carrying  provisions  to  the  starving  insur- 
gents, if  their  destination  could  be  made  certain,  the  probabilities 
were  that  such  provisions  carried  to  a  beleaguered  port,  would  be 
immediately  seized  by  the  enemy  and  used  for  the  sustenance  of  its 
soldiers.  The  exigency  was  one  which  rendered  it  entirely  prudent 
for  the  commander  of  the  fleet  to  act,  without  awaiting  instructions 
from  Washington. 

But  it  is  contended  that  at  the  time  of  the  capture,  the  port  of 
Guantanamo  was  completely  in  the  possession  and  control  of  the 
United  States,  and  therefore  that  the  blockade  had  been  terminated. 
It  appears,  however,  that  Guantanamo  is  eighteen  miles  from  the 
mouth  of  Guantanamo  Bay.     Access  to  it  is  obtained  either  by  a 


828  BELLIGERENTS    AND   NEUTKALS.  [PART  n. 

small  river  emptying  into  the  upper  bay,  or  by  rail  from  Caimanera, 
a  town  on  the  west  side  of  the  upper  bay.  It  seems  that  the  Jlarhle- 
head  and  the  Yankee  were  sent  to  Guantanamo  on  June  7;  entered 
the  harbor  and  took  possession  of  the  lower  bay  for  the  use  of  Amer- 
ican vessels;  that  the  Panther  and  Yosemife  were  sent  there  on  the 
10th,  and  on  the  12th  the  torpedo  boat  Porter  arrived  from  Guanta- 
namo with  news  of  a  land  battle,  and  from  that  time  the  harbor  was 
occupied  by  naval  vessels,  and  by  a  party  of  marines  who  held  the 
crest  of  a  hill  on  the  west  side  of  the  harbor  near  its  entrance,  and 
the  side  of  the  hill  facing  the  harbor.  But  the  town  of  Guantanamo, 
near  the  head  of  the  bay,  was  still  held  by  the  Spanish  forces,  as 
were  several  other  positions  in  the  neighborhood.  The  campaign  in 
the  vicinity  was  in  active  progress,  and  encounters  between  the 
United  States  and  Spanish  troops  were  of  frequent  occurrence. 

In  view  of  these  facts  we  are  of  opinion  that,  as  the  city  of  Guan- 
tanamo was  still  held  by  the  Spaniards,  and  as  our  troops  occupied 
only  the  mouth  of  the  bay,  the  blockade  was  still  operative  as  against 
vessels  bound  for  the  city  of  Guantanamo.  Here  again  the  case  of 
The  Circassian,  2  Wall.  135,  is  decisive.^  The  Circassian  was  cap- 
tured May  4,  1862,  for  an  attempted  violation  of  the  blockade  of  New 
Orleans.  The  city,  including  the  ports  below  it  on  the  Mississippi, 
was  captured  during  the  last  days  of  April,  and  military  possession 
of  the  city  taken  on  May  first.  It  was  held  that  neither  the  capture 
of  the  forts  nor  the  military  occupation  of  the  city  terminated  the 
blockade,  upon  the  ground  that  it  applied,  not  to  the  city  alone,  but 
controlled  the  port,  which  included  the  whole  parish  of  Xew  Orleans, 
and  lay  on  botli  sides  of  the  ^Mississippi,  and  all  the  ports  on  that 
river  and  on  the  lakes  east  of  the  city.  The  following  language  of 
the  chief  justice  is  equally  pertinent  to  this  case:  "Now,  it  may  be 
well  enough  conceded  that  a  continuous  and  complete  possession  of 

1  While  it  is  true  that  the  case  of  the  Circnf:sian,  supra,  "is  decisive,"  it  is  sub- 
mitted that  tlie  authority  of  that  case  lias  been  badly  shaken,  if  not  wholly  destro^'ed. 
Such  intense  dissatisfaction  was  created  by  the  judgment  of  the  Supreme  Court  that 
this  matter  was  submitted  to  the  American  and  Hritish  Claims  Commission  appointed 
by  the  Treaty  of  ^Lay  8,  1871,  between  the  United  States  and  Great  Britain  (Art. 
XIL).  The  commission  made  awnrds  in  favor  of  all  the  claimants.  4  Moore,  Int. 
Arb.  3911-3923. 

It  may  not  be  out  of  place  to  quote  the  following  passage  referring  to  the  judgment 
in  the  Circassian:  "Tlie  truth  is  that  tiie  feeling  of  the  country  was  deep  and  strong 
against  England,  and  the  judges,  as  individual  citizens,  were  no  exception  to  that 
feeling.  Besides,  tlie  court  was  not  then  familiar  with  the  law  of  blockade"  (Letter  of 
Mr.  Justice  Nelson,  dated  Aug.  4,  1873,  to  Wm.  B.  Lawrence  and  printed  in  Law 
Magazine  and  Review,  Fourth  series.  Vol.  III.  31).  It  should  be  said,  however,  that 
such  criticism  does  not  apply  to  Mr.  Justice  Nelson,  as  his  dissenting  opinions  suffi- 
ciently show.     See  also  Hall's  Int.  Law,  G94,  note  3.  —  Ed. 


CHAP.  III.]  THE    "  ADULA."  829 

the  city  and  tlie  port,  and  of  the  approaches  from  the  Gulf,  would 
make  a  blockade  unnecessary,  and  would  supersede  it.  But,  at  the 
time  of  the  capture  of  the  Circassian,  there  had  been  no  such  pos- 
session. Only  the  city  was  occupied,  not  the  port,  much  less  the 
district  of  country  commercially  dependent  upon  it,  and  blockaded 
by  its  blockade.  Even  the  city  had  been  occupied  only  three  days. 
It  was  yet  hostile;  the  rebel  army  was  in  the  neighborhood;  the 
occupation,  limited  and  recent,  was  subject  to  all  the  vicissitudes  of 
war.  Such  an  occupation  could  not  at  once,  of  itself,  supersede  or  |[ 
suspend  the  blockade.  It  might  ripen  into  a  possession  which  would  ' 
have  that  effect,  and  it  did;  but  at  the  time  of  the  capture  it  operated 
only  in  aid  and  completion  of  the  naval  investment."  The  occupa- 
tion of  the  city  terminates  a  blockade  because,  and  only  because,  it 
supersedes  it,  and  if  a  vessel  be  bound  to  a  port  or  place  beyond, 
which  is  still  occupied  by  the  enemy,  the  occupation  of  the  mouth 
of  the  harbor  does  not  necessarily  terminate  the  blockade  as  to  such 
places. 

Granting  the  existence  of  a  lawful  and  sufficient  blockade  at  Guan- 
tinamo,  its  legal  effect  was  a  closing  of  the  port,  and  an  interdiction 
of  the  entrance  of  all  vessels  of  whatever  nationality  or  business.  It 
is  well  described  by  Sir  William  Scott  in  The  Vrouw  Judith,  1  C. 
Rob.  126,  128,  "as  a  sort  of  circuravallation  round  a  place,  by  which 
all  foreign  connection  and  correspondence  is,  as  far  as  human  force 
can  effect  it,  to  be  entirely  cut  off.  It  is  intended  to  suspend  the 
entire  commerce  of  that  place,  and  a  neutral  is  no  more  at  liberty  to 
assist  the  traffic  of  exportation  than  of  importation.  The  utmost  that 
can  be  allowed  to  a  neutral  vessel  is,  that  having  already  taken  on 
board  a  cargo  before  the  blockade  begins,  she  may  be  at  liberty  to 
retire  with  it.  But  it  must  be  considered  as  a  rule  which  this  court 
means  to  apply,  that  a  neutral  ship  departing  can  only  take  away  a 
cargo  bond  fide  purchased  and  delivered,  before  the  commencement 
of  the  blockade.  If  she  afterwards  takes  on  board  a  cargo  it  is  a 
fraudulent  act  and  a  violation  of  the  blockade."  It  is  also  said  by 
Phillimore,  3  Int.  Law,  383,  that  "the  object  of  a  blockade  is  to  pre- 
vent exports  as  well  as  imports,  and  to  cut  off  all  communication  of 
commerce  with  the  blockaded  place."  The  sailing  of  a  vessel  with  a 
premeditated  intent  to  violate  a  blockade  is  i/jso  facto  a  violation  of 
the  blockade,  and  renders  the  vessel  subject  to  capture  from  the 
moment  she  leaves  the  port  of  departure.  Yeaton  v.  Fry,  5  Cranch, 
335;  The  Circassian,  2  Wall.  135;  The  Frederick  Molke,  1  C.  Rob. 
72;  The  Columbia,  1  C.  Rob.  130;  The  Xeptunus,  2  C.  Rob.  110; 
Wheaton  on  Captures,  196.  If  a  master  have  actual  notice  of  a 
blockade,  he  is  not  at  liberty  even  to  approach  the  blockaded  port  for 


830  BELLIGERENTS   A^TD   NEUTEALS.  [PAET  II. 

the  purpose  of  making  inquiries  of  the  blockading  vessels,  since  such 
liberty  could  not  fail  to  lead  to  attempts  to  violate  the  blockade  under 
pretext  of  approaching  the  port  for  the  purpose  of  making  such  in- 
quiries. The  Admiral,  3  Wall.  603;  The  Prize  Cases,  2  Black,  635, 
677;  Dueron  Ins.  661;  The  Cheshire,  3  Wall.  231;  The  James  Cook, 
Edwards,  261;  The  Josephine,  3  Wall.  83;  The  Sjyes,  5  C.  Rob.  76; 
The  Betsey,  1  C.  Rob.  332;  The  Xeptunus,  2  C.  Rob.  110;  The  Little 
William,  1  Acton,  141,  161;  Sjierri/  v.  Delaware  Ins.  Co.,  2  Wash. 
C.  C.  243.  If  there  be  any  distinction  in  this  particular  between  a 
proclaimed  blockade  and  an  actual  blockade  by  a  naval  commander 
it  does  not  aid  the  Adula  in  view  of  the  admitted  fact  that  she  was 
informed  by  the  Vixen  that  the  port  was  under  the  control  of  the 
United  States  military  forces,  and  that  the  war  ships  were  visible 
before  she  entered  the  bay. 

In  this  connection  we  are  cited  by  counsel  for  the  Adula  to  a 
change  in  the  law  said  to  have  been  effected  by  the  adhesion  of  this 
government,  at  the  beginning  of  the  war,  to  the  declaration  of  Paris 
abolishing  privateering.  This  supposed  change  apparently  rests  upon 
an  extract  from  a  French  treatise  upon  international  law  by  Pistoye 
and  Duverdy,  Vol.  I.  p.  375,  in  which  it  is  said  that  by  the  modern 
law,  in  consequence  of  the  declaration  of  Paris,  a  vessel  must  be 
notihed  to  depart  from  the  blockaded  port  before  she  can  be  captured, 
and  that  the  contrary  rule  was  the  result  of  the  doctrine  of  the 
British  Orders  in  Council  during  the  Napoleonic  wars,  which  is  now 
given  up  by  that  country.  It  is  also  said  that  "the  old  rule  was  that 
it  was  a  breach  of  blockade  to  enter  upon  a  voyage  to  the  blockaded 
port.  This  rule  is  now  changed,  because  neutrals  are  obliged  only  to 
respect  effective  blockades.  It  may  well  be  that  a  blockade  of  which 
official  notice  has  been  given  is  not  an  effective  blockade,  or  it  may 
be  that  a  blockade  which  has  been  established  by  a  sufficient  force 
may  have  ceased  to  exist.  Neutrals  then  have  the  right  to  begin  a 
voyage  to  a  blockaded  port  in  order  to  see  if  the  blockade  still  con- 
tinues. They  are  only  guilty  when,  while  the  blockade  continues, 
they  actually  endeavor  to  break  it." 

We  cannot,  however,  accept  this  opinion  as  overruling  in  any 
particular  the  prior  decisions  of  this  court  in  the  cases  above  cited, 
to  the  effect  that  a  departure  for  a  blockaded  port  with  intent  to  vio- 
late the  blockade  renders  the  vessel  liable  to  seizure.  When  Congress 
has  spoken  upon  this  subject  it  will  be  time  enough  for  this  court  to 
act.  We  cannot  change  our  rulings  to  conform  to  the  opinions  of 
foreign  writers  as  to  wliat  they  suppose  to  be  the  existing  law  ui)on 
the  subject. 

We  have  not  overlooked  in  this  connection  the  provision  contained 


CHAP.  III.]  THE    "  ADULA."  831 

in  Art.  18  of  Jay's  treaty  of  1794,  to  the  effect  that  "whereas,  it 
frequently  happens  that  vessels  sail  for  a  port  or  place  belonging  to 
an  enein\-,  without  knowing  that  the  same  is  either  besieged,  block- 
aJed,  or  invested,  it  is  agreed,  that  every  vessel  so  circumstanced, 
may  be  turned  away  from  such  port  or  place,  but  she  shall  not  be 
detained  nor  her  cargo,  if  not  contraband,  confiscated,  unless  after 
notice  she  shall  again  attempt  to  enter."  F'dzsimmons  v.  Neuyort 
Ins.  Co.,  4  Crauch,  185.  Waiving  the  question  whether  this  clause 
of  Jay's  treaty  was  abrogated  by  the  war  of  1812,  and  accepting  it  . 
as  a  correct  exposition  of  the  law  of  nations,  it  applies  only  to  vessels  , 
which  have  sailed  for  a  hostile  port  or  place  without  knowing  that  * 
the  same  is  either  besieged,  blockaded,  or  invested.  The  whole  case 
against  the  Adula  depends  upon  the  question  whether  those  in  charge 
of  her  knew  before  she  left  Kingston  that  Santiago  and  Guantanamo 
were  blockaded.  If  they  did,  the  treaty  does  not  ap})h\  If  they  did 
not,  thkiy  are  entitled  to  the  benefit  of  this  principle  of  international 
law.  In  the  case  of  the  Maryland  Ins.  Co.  v.  Woods,  6  Cranch,  29j 
in  which  it  was  held  that  the  vessel  could  not  be  placed  in  the  situa- 
tion of  one  having  notice  of  the  blockade  until  she  was  warned  off, 
the  decision  was  placed  upon  the  express  ground  that  orders  had  been 
given  by  the  British  Government,  and  communicated  to  our  govern- 
ment, "not  to  consider  blockades  as  existing,  unless  in  respect  to 
particular  ports  which  may  be  actually  invested,  and  then  not  to 
capture  vessels  bound  to  such  ports,  unless  they  shall  have  been  pre- 
viously warned  not  to  enter  them."  This  order  was  treated  by  the 
court  as  a  mitigation  of  the  general  rule  so  far  as  respected  blockades 
in  the  West  Indies. 

From  all  the  testimony  in  the  case  it  appears  very  clear: 

[That  the  Adula  belonged  to  a  British  corporation,  the  Atlas 
Steamship  Company,  flew  the  British  flag,  and  prior  to  the  Spanish- 
American  war  was  engaged  in  general  trade  between  Kingston  and 
other  ports  on  the  coast  of  Jamaica,  in  connection  with  other  steamers 
of  the  same  line  from  New  York,  and  from  time  to  time  had  made 
voyages  to  Cuban  ports.] 

That  Guantanamo  was  actually  and  effectively  blockaded  by  orders 
of  Admiral  Sampson  from  June  7  until  after  the  capture  of  the 
Adula  ; 

That  the  Adula  was  chartered  to  a  Spanish  subject  for  a  voyage  to 
Guantanamo,  Santiago,  or  Manzanillo,  for  the  purpose  of  bringing 
away  refugees,  and  that  such  voyage  was  primarily,  at  least,  a  com- 
mercial one  for  the  personal  profit  of  the  charterer.  During  such 
charter  she  was  to  a  certain  extent  ^ro  hue  vice,  a  Spanish  vessel,  and 
a  notice  to  Solis  of  the  existence  of  the  blockade  was  a  notice  to  the 


832  BELLIGERENTS    AND   NEUTRALS.  [PART  II. 

vessel.  The  Ranger,  6  C.  Eob.  126;  The  Yonge  Emilia,  3  C.  Eob. 
52;  The  Napoleon,  Blatch.  Prize  Cases,  206.  The  fact  of  her  sailing 
under  a  Spanish  passport  —  in  fact,  an  enemy's  license  —  is  not 
devoid  of  signiticance.  Indeed,  we  have  in  several  cases  regarded 
this  as  sufficient  ground  for  condemnation.  Tlie  India,  8  Cranch, 
181;  The  Aurora,  8  Cranch,  203;  The  Hiram,  1  Wheat.  440;  The 
Ariachie,  2  Wheat.  143.  This  passport  gave  the  Adida  authority  to 
enter  the  Cuban  ports  and  take  away  refugees,  and  it  is  a  circum- 
stance worthy  of  notice  that  it  could  not  be  found  when  the  vessel 
was  captured.  Solis  acknowledged  its  existence,  but  made  no  effort 
to  account  for  its  loss; 

Both  Solis  himself  and  the  Adula  had  been  previously  engaged  in 
similar  enterprises  to  the  coast  of  Cuba,  and  were  chargeable  with 
notice,  not  only  of  war  between  the  United  States  and  Spain,  but 
with  the  fact  of  military  and  naval  operations  upon  the  southern  coast 
of  Cuba; 

The  fact  of  such  war,  that  the  object  of  it  was  the  expulsion  of  the 
Spanish  forces  from  Cuba,  and  that  military  and  naval  operations 
were  being  carried  on  by  us  with  that  object  in  view,  must  have  been 
matters  of  common  knowledge  in  Kingston,  as  well  as  the  fact  that 
the  commerce  with  the  southern  ports  of  Cuba  was  likely  to  be  inter- 
rupted, and  that  all  intercourse  with  such  ports  would  become  dan- 
gerous in  consequence  of  such  war; 

While  the  mission  of  the  Adula  was  not  an  unfriendly  one  to  this 
government,  she  was  not  a  cartel  ship,  privileged  from  capture  as 
such,  but  one  employed  in  a  commercial  enterprise  for  the  personal 
profit  of  the  charterer,  and  only  secondarily,  if  at  all,  for  the  purpose 
of  humanity.  Her  enterprise  was  an  unlawful  one,  in  case  a  blockade 
existed,  and  both  Solis  and  the  master  of  the  Adula  were  cognizant 
of  this  fact.  The  direction  of  the  commanding  officer  of  the  Vixen, 
which  overhauled  the  Adula  off  Guantanamo,  to  enter  the  harbor, 
cannot  be  construed  as  a  permission  to  violate  the  blockade,  as  such 
permission  would  not  be  within  the  scope  of  his  authority.  The 
Ho2ye,  1  Dod.  226;  The  Amado,  Newb.  400;  The  Joseph,  8  Cr.  451; 
The  Benito  Estenger,  pout  568. 

That  upon  arrival  off  Santiago  the  blockading  fleet  was  plainly 
visible,  and  we  think  there  is  a  preponderance  of  evidence  to  the 
effect  that  both  Solis  and  the  master  of  the  Adula  knew  of  the  actual 
blockade,  that  it  was  generally  known  in  Kingston  before  she  sailed, 
and  tliat  the  Adula  was  chargeable  with  a  breach  of  it,  notwithstand- 
ing the  letter  of  instructions  from  Mr.  Forwood  to  Captain  Yeates. 
As  the  blockade  had  been  in  existence  since  June  7,  it  is  scarcely 
possible  that,  in  the  three  weeks  tliat  elapsed  before  the  Adula  sailed, 


CHAP.  III.]  THE    "  ADULA."  833 

it  should  not  have  been  known  in  Kingston,  which  was  only  a  day's 
trip  from  the  southern  coast  of  Cuba,  and  with  which  it  appears  to 
have  been  in  frequent  communication.  This  probability  is  con- 
firmed by  the  direct  testimony  of  the  sailor  Morris,  that  it  was 
matter  of  common  talk  in  Kingston.  The  testimony  of  Sol  is,  that 
he  did  not  know  "officially"  that  Guantanamo  was  blockaded,  by 
which  we  are  to  understand  that  it  had  not  been  officially  proclaimed, 
is  perfectly  consistent  with  a  personal  knowledge  of  the  actual  fart. 
His  statement  seems  to  be  little  more  than  a  convenient  evasion. 
Upon  the  principle  already  stated  his  knowledge  was  the  knowledge 
of  the  ship. 

We  think  the  facts  herein  stated  outweigh  the  general  statement 
of  the  officers  that  they  had  not  heard  of  the  blockade. 

3.  There  was  no  error  in  denying  the  motion  of  the  claimant 
to  take  further  proofs.  It  appears  from  the  opinion  of  the  court 
that  "the  hearing  upon  the  proceedings  for  condemnation  was  upon 
the  evidence  afforded  by  the  examination  of  the  captured  crew 
taken  upon  standing  interrogatories,  the  ship's  papers,  and  other 
evidence  of  a  documentary  character  found  upon  the  ship  by  the 
captors.  This  was  done  in  conformity  to  the  established  rule  in  prize 
cases." 

The  motion  to  take  further  proof  was  made  upon  the  affidavit  of 
Eobert  Gemmell,  the  Xew  York  agent  of  the  company,  the  statement 
of  W.  P.  T'orwood,  the  Kingston  agent,  annexed  thereto,  as  well  as 
his  own  affidavit  and  exhibits,  and  upon  the  counter  testimony  of 
Anderson,  EUenberg,  and  Gill  taken  de  bene  esse.  Upon  the  hearing 
of  this  motion  the  court  considered  the  allegations  of  Forwood, 
attached  to  Gemmell's  affidavit,  as  if  Forwood  had  testified  upon 
depositions  regularly  taken,  giving  due  weight  to  the  same  in  con- 
nection with  other  evidence  in  the  case;  and  was  of  opinion  that  the 
evidence  as  it  stood  was  not  susceptible  of  any  satisfactory  explana- 
tion; and  comparing  the  proof  proposed  to  be  brought  forward  with 
that  already  in  the  case,  came  to  the  conclusion  that  the  legal  effect 
of  the  facts  before  the  court  could  not  be  varied  by  the  explanation 
offered.  The  motion  was  denied.  In  considering  this  case  we  have 
also  given  effect  to  these  affidavits,  and  have  come  to  the  conclusion 
that,  if  they  are  to  be  taken  as  true,  and  the  further  proofs,  if  taken, 
would  support  them,  they  would  not  change  our  opinion  with  respect 
to  the  affirmance  of  the  decree. 

If  an  examination  of  the  ship's  papers  and  of  the  crew,  taken  in 
preparatorio,  upon  which  the  cause  is  first  heard  in  the  District 
Court,  make  a  case  for  condemnation,  the  order  for  further  proof  is, 
as  stated  in  The  Gray  Jacket,  5  Wall.  342,  3G8,  always  made  with 


834  BELLIGERENTS    AND   NEUTRALS.  [PART  If. 

extreme  caution,  and  only  where  the  interests  of  justice  clearly 
require  it.  If  the  ship's  papers  and  the  testimony  of  the  crew  do 
not  justify  an  acquittal,  it  is  improbable  that  a  defence  would  be 
established  by  further  proof;  and  as  the  interest  of  all  parties  require 
that  prize  causes  be  quickly  disposed  of,  it  is  only  wliere  the  testi- 
mony hi  preparatoi'io  makes  a  case  of  grave  doubt,  that  the  court 
orders  the  taking  of  further  proofs.  The  Pizarro,  2  Wheat.  227; 
The  Amiable  Isabella,  6  Wheat.  1,  77;  Benedict's  Adm'y,  sec.  512  a; 
Story  on  Prize  Courts,  17. 

It  was  said  by  Sir  William  Scott  in  The  Sarah,  3  C.  Rob.  330,  that 
"it  has  seldom  been  done  except  in  cases  where  there  has  appeared 
something  in  the  original  evidence,  which  lays  a  suggestion  for  prose- 
cuting the  inquiry  farther.  In  such  case  the  court  has  allowed  it; 
but  when  the  matter  is  foreign,  and  not  connected  with  the  original 
evidence  of  the  cause,  it  must  be  under  very  peculiar  circumstances 
indeed  that  the  court  will  be  induced  to  accede  to  such  an  applica- 
tion; because,  if  remote  suggestions  were  allowed,  the  practice  of  the 
court  would  be  led  away  from  the  simplicity  of  prize  proceedings, 
and  there  would  be  no  end  to  the  accumulation  of  proof  that  would  be 
introduced  in  order  to  support  arbitrary  suggestions." 

These  remarks  are  especially  pertinent  to  the  offer  of  further  proof 
that,  while  Solis  owed  allegiance  to  the  Queen  of  Spain,  yet,  that  he 
left  Cuba  soon  after  the  war  broke  out,  took  no  part  in  the  hostilities, 
but  on  the  contrary  had  done  all  in  his  power  while  he  remained  in 
Cuba  to  assist  citizens  of  the  United  States  residing  there;  had  sided 
with  the  natives  of  Cuba,  and  was  desirous  that  a  government  should 
be  established  in  the  island  under  the  auspices  of  the  United  States. 
As  was  observed  in  the  very  satisfactory  opinion  of  the  district  judge 
in  this  ease,  this  evidence  was  altogether  irrelevant  to  the  case  of  the 
Adula,  and  was,  to  a  certain  extent,  a  contradiction  of  his  testimony 
before  the  prize  commissioners  that  he  was  a  loyal  subject  of  Spain, 
bore  a  Spanish  passport,  and  carried  a  bill  of  health  vised  hy  the 
Spanish  consul  at  Kingston.  It  Avould  tlirow  the  whole  practice  in 
prize  cases  into  confusion  if  the  testimony,  taken  in  jn^eparatorio, 
when  the  facts  are  fresh  in  the  minds  of  the  witnesses,  were  subject 
to  be  contradicted  by  the  same  witnesses  after  its  weak  points  had 
been  developed.  It  was  said  by  ^Ir,  Justice  Story  in  The  Pizarro,  2 
Wheat.  227:  "Nor  should  the  captured  crew  have  been  permitted  to 
be  re-examined  in  court.  They  are  bound  to  declare  the  whole  truth 
upon  the  first  examination;  and  if  they  fraudulently  suppress  any 
material  facts,  they  ought  not  to  be  indulged  with  an  opportunity  to 
disclose  what  they  please,  or  to  give  color  to  their  former  statements 
after  counsel  has  been  taken,  and  they  know  the  pressure  of  the  cause. 


CHAP.  III.]  THE   "  OLINDE    RODRIGUES."  835 

Public  policy  and  justice  equally  point  out  the  necessity  of  an  inflex- 
ible adherence  to  this  rule." 

Upon  the  whole,  we  think  the  decree  of  the  District  Court  was 
correct,  and  it  is  therefore  Affirmed.^ 


THE   "OLINDE   RODRIGUES." 
Supreme  Court  of  the  United  States,  1898. 

(174  Uinted  States,  510.) 

Mr.  Chief  Justice  Fuller  delivered  the  opinion  of  the  court. 

We  are  unable  to  concur  with  the  learned  district  judge  in  the 
conclusion  that  the  blockade  of  the  port  of  San  Juan  at  the  time  this 
steamship  was  captured  was  not  an  effective  blockade. 

To  be  binding,  the  blockade  must  be  known,  and  the  blockading 
force  must  be  present ;  but  is  there  any  rule  of  law  determining  that 
the  presence  of  a  particular  force  is  essential  in  order  to  render 
a  blockade  effective  ?  We  do  not  think  so,  but  on  the  contrary,  that 
the  test  is  whether  the  blockade  is  practically  effective,  and  that  that 
is  a  question,  though  a  mixed  one,  more  of  fact  than  of  law. 

The  fourth  maxim  of  the  Declaration  of  Paris  (April  16,  1856) 
was:  "Blockades,  in  order  to  be  binding,  must  be  effective,  that  is  to 
say,  maintained  by  a  force  sufficient  really  to  prevent  access  to  the 
coast  of  the  enemy."  Manifestly  this  broad  definition  was  not  in- 
tended to  be  literally  applied.  The  object  was  to  correct  the  abuse, 
in  the  early  part  of  the  century,  of  paper  blockades,  where  extensive 
coasts  were  put  under  blockade  by  proclamation,  without  the  presence 
of  any  force,  or  an  inadequate  force  ;  and  the  question  of  what  might 
be  sufficient  force  was  necessarily  left  to  be  determined  according  to 
the  particular  circumstances. 

■  Tliis  was  put  by  Lord  Russell  in  his  note  to  Mr.  jNfason  of  February 
10,  1861,  thus:  "The  Declaration  of  Paris  was  in  truth  directed 
against  what  were  once  termed  '  paper  blockades  ; '  that  is,  blockades 
not  sustained  by  any  actual  force,  or  sustained  by  a  notoriously  in- 
adequate naval  force,  such  as  an  occasional  appearance  of  a  man-of-war 
in  the  offing  or  the  like.  *  *  *  The  interpretation,  therefore,  placed 
by  her  Majesty's  Government  on  the  declaration  was,  that  a  blockade, 
in  order  to  be  respected  by  neutrals,  must  be  practically  effective.  *  *  * 

^  Dissenting  opinion  of  Shiras,  J.,  concurred  in  by  Gray,  "Whitp:,  and  Pkckham, 
JJ.,  omitted.  See  The  Newfoundland,  1899,  176  U.  S.  97,  for  case  in  wliich  intent  lo 
run  the  blockade  of  Havana  during  the  same  war  was  held  insufficiently  proved.  —  Ed. 


836  BELLIGERENTS   AND   NEUTRALS.  [PART  II, 

It  is  proper  to  add,  that  the  same  view  of  tlie  meaning  and  effect 
of  tlie  articles  of  the  Deckiration  of  Paris,  on  the  subject  of  blockades, 
which  is  above  explained,  was  taken  by  the  representative  of  the 
United  States  at  the  Court  of  St.  James  (Mr.  Dallas)  during  the 
communications  which  passed  between  the  two  governments  some 
3'ears  before  the  present  war,  with  a  view  to  the  accession  of  the 
United  States  to  that  declaration."  Hall's  Int.  Law,  §  260,  p.  730, 
note. 

The  quotations  from  the  Parliamentary  debates,  of  May,  1861,  given 
by  Mr.  Dana  in  note  233  to  the  eighth  edition  of  Wheaton  on  In- 
ternational Law,  afford  interesting  illustrations  of  what  was  con- 
sidered the  measure  of  effectiveness  ;  and  an  extract  is  also  there 
given  from  a  note  of  the  Department  of  Foreign  Affairs  of  France  of 
September,  1861,  in  which  that  is  defined:  "Forces  sufficient  to 
'  prevent  the  ports  being  approached  without  exposure  to  a  certain 
.  danger." 

In  The  Mercurlus,  1  C.  Rob.  80,  84,  Sir  AVilliam  Scott  stated :  "  It 
is  said,  this  passage  to  the  Ziiyder  Zee  was  not  in  a  state  of  blockade  ; 
but  the  ship  was  seized  immediately  on  entering  it;  and  I  know  not 
what  else  is  necessary  to  constitute  blockade.  The  powers  who 
formed  the  armed  neutrality  in  the  last  war,  understood  blockade  in 
this  sense;  and  Russia,  who  was  the  principal  party  in  that  con- 
federacy, described  a  place  to  be  in  a  state  of  blockade,  when  it  is 
dangerous  to  attempt  to  enter  into  it." 

And  in  TJie  Frederick  Molke,  1  C.  Rob.  86,  the  same  great  jurist 
said :  "  For  that  a  legal  blockade  did  exist,  results  necessarily  from 
these  facts,  as  nothing  farther  is  necessary  to  constitute  blockade, 
than  that  there  should  be  a  force  stationed  to  prevent  communication, 
and  a  due  notice,  or  prohibition  given  to  the  party." 

Such  is  the  settled  doctrine  of  the  English  and  American  courts 
and  publicists,  and  it  is  embodied  in  the  second  of  the  instructions 
issued  by  tlie  Secretary  of  the  Navy,  June  20,  1898,  General  Order 
No.  492 :  "  A  blockade  to  be  effective  and  binding  must  be  maintained 
by  a  force  sufficient  to  render  ingress  to  or  egress  from  the  port 
dangerous." 

Clearly,  however,  it  is  not  practicable  to  define  what  degree  of 
danger  shall  constitute  a  test  of  the  efficiency  and  validity  of  a  block- 
/  ade.     It  is  enough  if  the  danger  is  real  and  apparent. 

In  The  Franchka,  2  Spinks,  128,  Dr.  Lushington,  in  passing  on  the 
question  whether  the  blockade  imposed  on  the  port  of  Riga  was  an 
effective  blockade,  said :  '•'  What,  then,  is  an  efficient  blockade,  and 
how  has  it  been  defined,  if,  indeed,  the  term  'definition'  can  be 
applied  to  such  a  subject  ?     The  one  definition   mentioned  is,  that 


CHAP.  III.]  THE   "  OLINDE   EODRIGUES."  837 

egress  or  entrance  shall  be  attended  with  evident  danger;  another, 
that  of  Chancellor  Kent  (1  Kent's  Com.  146),  is,  that  it  shall  be 
apparentl}^  dangerous.  All  these  definitions  are  and  must  be,  from 
the  nature  of  blockades,  loose  and  uncertain ;  the  maintenance  of  a 
blockade  must  always  be  a  question  of  degree,  —  of  the  degree  of 
danger  attending  ships  going  into  or  leaving  a  blockaded  port.  Noth- 
ing is  further  from  my  intention,  nor,  indeed,  more  opposed  to  my 
notions  of  the  law  of  nations,  than  any  relaxation  of  the  rule  that  a 
blockade  must  be  efficiently  maintained  ;  but  it  is  perfectly  obvious 
that  no  force  could  bar  the  entrance  to  absolute  certainty;  that 
vessels  may  get  in  and  get  out  during  the  night,  or  fogs,  or  violent 
winds,  or  occasional  absence ;  that  it  is  most  difficult  to  judge  from 
numbers  alone." 

"It  is  impossible,"  says  Mr.  Hall  (§  2G0),  "to  fix  with  any  accuracy 
the  amount  of  danger  in  entry  which  is  necessary  to  preserve  the 
validity  of  a  blockade.  It  is  for  the  prize  courts  of  the  belligerent  to 
decide  whether  in  a  given  instance  a  vessel  captured  for  its  breach 
had  reason  to  suppose  it  to  be  non-existent ;  or  for  the  neutral  gov- 
ernment to  examine,  on  the  particular  facts,  whether  it  is  proper  to 
withhold  or  to  withdraw  recognition." 

In  The  Hojfnung,  6  C.  Rob.  112,  117,  Sir  William  Scott  said: 
*'When  a  squadron  is  driven  off  by  accidents  of  weather,  which  must 
have  entered  into  the  contemplation  of  the  belligerent  imposing  the 
blockade,  there  is  no  reason  to  suppose  that  such  a  circumstance 
would  create  a  change  of  system,  since  it  could  not  be  expected  that 
any  blockade  would  continue  many  months,  without  being  liable  to 
such  temporary  interruptions.  But  when  a  squadron  is  driven  off  by 
a  superior  force,  a  new  course  of  events  arises,  which  may  tend  to  a 
very  different  disposition  of  the  blockading  force,  and  which  intro- 
duces therefore  a  very  different  train  of  presumptions,  in  favor  of  the 
ordinary  freedom  of  commercial  speculations.  In  such  a  case  the  neu- 
tral merchant  is  not  bound  to  foresee  or  to  conjecture  that  the  blockade 
will  be  resumed."  And  undoubtedly  a  blockade  may  be  so  inade- 
quate, or  the  negligence  of  the  belligerent  in  maintaining  it  may  be 
of  such  a  character,  as  to  excuse  neutral  vessels  from  the  penalties 
for  its  violation.  Thus  in  the  case  of  an  alleged  breach  of  the 
blockade  of  the  island  of  Martinique,  which  had  been  carried  on  by 
a  number  of  vessels  on  the  different  stations,  so  communicating  with 
each  other  as  to  be  able  to  intercept  all  vessels  attempting  to  enter 
the  ports  of  the  island,  it  was  held  that  their  withdrawal  was  a  neglect 
which  "  necessarily  led  neutral  vessels  to  believe  these  ports  might 
be  entered  without  incurring  any  risk."     The  Xanci/,  1  Acton,  o7,  59, 

But  it  cannot  be  that  a  vessel  actually  captured  in  attempting  to 


838  BELLIGERENTS    AND    NEUTRALS.  [PART  II. 

enter  a  blockaded  port,  after  warning  entered  on  her  log  by  a  cruiser 
olf  that  port  only  a  few  days  before,  could  dispute  the  efficiency  of 
the  force  to  which  she  was  subjected. 

As  we  hold  that  an  effective  blockade  is  a  blockade  so  effective  as 
to  make  it  dangerous  in  fact  for  vessels  to  attempt  to  enter  the 
blockaded  port,  it  follows  that  the  question  of  effectiveness  is  not 
controlled  by  the  number  of  the  blockading  force.  In  other  words, 
the  position  cannot  be  maintained  that  one  modern  cruiser  though 
sufficient  in  fact  is  not  sufficient  as  matter  of  law. 

Even  as  long  ago  as  1809,  in  The  Nancy,  1  Acton,  G3,  where  the 
station  of  the  vessel  was  sometimes  off  the  port  of  Trinity  and,  at 
others,  off  another  port  more  than  seven  miles  distant,  it  was  ruled 
that:  "Under  particular  circumstances  a  single  vessel  may  be  ade- 
quate to  maintain  the  blockade  of  one  port  and  co-operate  with  other 
vessels  at  the  same  time  in  the  blockade  of  another  neighboring 
port;"  although  there  Sir  William  Grant  relied  on  the  opinion  of 
the  commander  on  that  station  that  the  force  was  completely  adequate 
to  the  service  required  to  be  perfermed. 

The  ruling  of  Dr.  Lushington  in  Tlie  Franclska,  above  cited,  Avas  to 
that  effect,  and  the  text-books  refer  to  other  instances. 

The  learned  district  judge,  in  his  opinion,  refers  to  the  treaty 
between  France  and  Denmark  of  1742,  which  provided  that  the 
entrance  to  a  blockaded  port  should  be  closed  by  at  least  two  vessels 
or  a  battery  on  shore ;  to  the  treaty  of  1760  between  Holland  and  the 
Two  Sicilies  prescribing  that  at  least  six  ships  of  war  should  be 
ranged  at  a  distance  slightly  greater  than  gunshot  from  the  entrance; 
and  to  the  treaty  between  Prussia  and  Denmark  of  1818,  which  stipu- 
lated that  two  vessels  should  be  stationed  before  every  blockaded  port ; 
but  we  do  not  think  these  particular  agreements  of  special  importance 
here,  and,  indeed.  Ortolan,  by  whom  they  are  cited,  says  that  such 
stipulations  cannot  create  a  positive  rule  in  all  cases  even  between 
the  parties,  "since  the  number  of  vessels  necessary  to  a  complete 
investment  depends  evidently  on  the  nature  of  the  place  blockaded." 
2  Ortolan,  4th  ed.,  330,  and  note  2. 

Nor  do  we  regard  Sir  William  Scott's  judgment  in  TJie  Arthur, 
1814,  1  Dodson,  423,  425,  as  of  weight  in  favor  of  claimants.  In 
effect  the  ruling  sustained  the  validity  of  tlie  maintenance  of  blockade 
by  a  single  ship,  and  the  case  was  thus  stated  :  "  Tiiis  is  a  claim  made 
by  one  of  his  Majesty's  shi[)s  to  share  as  joint-captor  in  a  prize  taken 
in  tlie  river  Ems  by  anotlier  sliip  belonging  to  his  ^Majesty,  for  a 
l)reacli  of  tlie  blockade  im])Osed  by  tlie  order  in  council  of  the  2Gth  of 
April,  1809.  This  order  was,  among  others,  issued  in  the  way  of 
retaliation  for  the  measures  which    had  been  previously  adopted  by 


CHAP.  III.]  THE    "  OLINDE   RODRIGUES."  839 

the  French  Government  against  the  commerce  of  this  country.  The 
blockade  imposed  by  it  is  applicable  to  a  very  great  extent  of  coast, 
and  was  never  intended  to  be  maintained  according  to  the  usnal  and 
regular  mode  of  enforcing  blockades,  by  stationing  a  number  of  ships 
and  forming  as  it  were  an  arch  of  circumvallatiou  around  the  mouth 
of  the  prohibited  port.  There,  if  the  arch  fails  in  any  one  part,  the 
blockade  itself  fails  altogether  ;  but  this  species  of  blockade,  which 
has  arisen  out  of  the  violent  and  unjust  conduct  of  the  enemy,  was 
maintained  by  a  ship  stationed  anywhere  in  the  neighborliood  of  the 
coast,  or,  as  in  this  case,  in  the  river  itself,  observing  and  preventing 
every  vessel  that  might  endeavor  to  effect  a  passage  up  or  down  the 
river." 

Blockades  are  maritime  blockades,  or  blockades  by  sea  and  land  ; 
and  they  may  be  either  military  or  commercial,  or  may  partake  of  the 
nature  of  both.  The  question  of  effectiveness  must  necessarily  de- 
pend on  the  circumstances.  We  agree  that  the  fact  of  a  single  cap- 
ture is  not  decisive  of  the  effectiveness  of  a  blockade,  but  the  case 
made  on  this  record  does  not  rest  on  that  ground. 

We  are  of  opinion  that  if  a  single  modern  cruiser  blockading  a  port 
renders  it  in  fact  dangerous  for  other  craft  to  enter  the  port,  that  is 
sufficient,  since  thereby  the  blockade  is  made  practically  effective. 

What  then  were  the  facts  as  to  the  effectiveness  of  the  blockade  in 
the  case  before  us  ? 

In  the  proclamation  of  June  27,  1898,  occurs  this  paragraph :  "  The 
United  States  of  America  has  instituted  and  will  maintain  an  effective 
blockade  of  all  the  ports  on  the  south  coast  of  Cuba,  from  Cape 
Frances  to  Cape  Cruz,  inclusive,  and  also  of  the  port  of  San  Juan,  in 
the  island  of  Porto  Rico."  Proclamation  No.  11,  30  Stat.  34.  The 
blockade  thus  announced  was  not  of  the  coast  of  Porto  Rico,  but  of 
the  port  of  San  Juan,  a  town  of  less  than  25,000  inhabitants,  on  tlie 
northern  coast  of  Porto  Rico,  with  a  single  entrance.  From  June  27 
to  July  14,  1898,  the  Yosemife,  a  merchant  ship  converted  into  an 
auxiliary  cruiser,  blockaded  the  port.  Her  maximum  speed  was 
fifteen  and  one-half  knots;  and  her  armament  ten  5-inch  rapid  firing 
guns,  six  6-pounders,  two  1-pounders,  with  greatest  range  of  three  and 
one-half  miles.  While  the  Yosemite  was  blockading  the  port  she  ran 
the  armed  transport  Antonio  Lopez  aground  six  miles  from  San  Juan; 
gave  a  number  of  neutral  vessels  official  notice  of  the  blockade ; 
warned  off  many  from  the  port;  and  on  the  5th  of  July,  1898,  wrote 
into  the  log  of  the  Ollnde  Ilodvigues,  off  San  Jum,  the  official  warn- 
ing of  the  blockade  of  San  Juan.  On  July  14  and  thereafter  the  port 
was  blockaded  by  the  armored  cruiser  New  Orleans,  whose  maximum 
speed  was  twenty-two  knots,  and  her   armament  six  6-inch  breech- 


8i0  BELLTGEEENTS    AND   NEUTRALS.  [PART  II. 

loading  rifles,  four  4.7-inch  breech-loading  rifles,  ten  G-pounders,  four 
1.5-inch  guns,  corresponding  to  S-pouuders  ;  four  3-pouuders  in  the 
tops  ;  four  37-millimetre  automatic  guns,  corresponding  to  1-pounders. 
The  range  of  her  guns  was  five  and  one-half  sea  miles  or  six  and  a 
quarter  statute  miles.  If  stationary,  she  could  command  a  circle  of 
thirteen  miles  in  diameter;  if  moving,  at  maximum  speed,  she  could 
cover  in  five  minutes  any  point  on  a  circle  of  seventeen  miles  diameter  ; 
and  in  ten  minutes  any  point  on  a  circle  of  nineteen  miles  diameter; 
her  electric  search-lights  could  sweep  the  sea  by  night  for  ten  miles 
distance;  her  motive  power  made  her  independent  of  winds  and 
currents  ;  in  these  respects  and  in  her  armament  and  increased  range 
of  guns  she  so  far  surpassed  in  effectiveness  the  old-time  war  ships 
that  it  would  be  inadmissible  to  hold  that  even  if  a  century  ago  more 
than  one  ship  was  believed  to  be  required  for  an  effective  blockade, 
therefore  this  cruiser  was  not  sufficient  to  blockade  this  port. 

Assuming  that  the  Olinde  Rodrigues  attempted  to  enter  San  Juan, 
July  17,  there  can.  be  no  question  that  it  was  dangerous  for  her  to  do 
so,  as  the  result  itself  demonstrated.  She  had  had  actual  warning 
twelve  days  before  ;  no  reason  existed  for  the  supposition  that  the 
blockade  had  been  pretermitted  or  relaxed;  her  commander  had  no 
right  to  experiment  as  to  the  practical  effectiveness  of  the  blockade, 
and,  if  he  did  so,  he  took  the  risk  ;  he  was  believed  to  be  making  the 
attempt,  and  was  immediately  captured.  In  these  circumstances  the 
vessel  cannot  be  permitted  to  plead  that  the  blockade  was  not  legally 
effective. 

But  we  are  considering  the  blockade  of  the  port  of  San  Juan  and 
not  of  the  coast,  and  while  additional  vessels  to  cruise  about  the 
island  might  be  desirable  in  order  that  the  blockade  should  be  posi- 
tively effective,  we  think  it  a  sufficient  compliance  with  the  obliga- 
tions of  international  law  if  the  blockade  made  egress  or  ingress 
dangerous  in  fact,  and  that  the  suggestions  of  a  zealous  American 
naval  commander,  in  anticipation  of  a  conflict  of  armed  forces  before 
San  Juan,  that  the  blockade  should  be  brought  to  the  highest  efficiency 
in  a  military  as  well  as  a  commercial  aspect,  cannot  be  allowed  to 
have  the  effect  of  showing  that  the  blockade  which  did  exist  was,  as 
to  this  vessel,  ineffective  in  point  of  law. 

Such  being  the  situation,  and  the  evidence  of  the  ship's  officers 
being  explicit  that  the  vessel  was  on  her  way  to  St.  Thomas  and  had 
no  intention  of  running  into  San  Juan,  the  decree  in  her  favor  must 
be  affirmed  on  the  merits,  unless  the  record  elsewhere  furnishes 
evidence  sufficient  to  overcome  the  conclusion  reasonably  deducible 
from  the  facts  above  stated. 

Counsel  for  the  government  insist  that  the  intention  of  the    OUnde 


CHAP.  III.]  THE   "  OLINDE    EODRIGUES."  841 

to  run  the  blockade  is  necessarily  to  be  inferred  from  the  possession 
of  these  bills  of  health  and  their  alleged  concealment  and  destruction. 
Doubtless  the  spoliation  of  papers,  and,  though  to  a  less  degree,  their 
concealment,  is  theoretically  a  serious  offence,  and  authorizes  the 
presumption  of  an  intention  to  suppress  incriminating  evidence,  though 
this  is  not  an  irrebuttable  presumption. 

In  The  Fizarro,  2  Wheat.  227,  241,  the  rule  is  thus  stated  by  Mr. 
Justice  Story :  '•'  Concealment,  or  even  spoliation  of  papers  is  not  of 
itself  a  sufficient  ground  for  condemnation  in  a  prize  court.  It  is,  ] 
undoubtedly,  a  very  awakening  circumstance,  calculated  to  excite  the  ' 
vigilance,  and  to  justify  the  suspicions  of  the  court.  I5ut  it  is  a 
circumstance  open  to  explanation,  for  it  may  have  arisen  from  acci- 
dent, necessity,  or  superior  force  ;  and  if  the  party  in  the  first  instance 
fairly  and  frankly  explains  it  to  the  satisfaction  of  the  court,  it 
deprives  him  of  no  right  to  which  he  is  otherwise  entitled.  If,  on  the 
other  hand,  the  spoliation  be  unexplained,  or  the  explanation  appear 
weak  and  futile;  if  the  cause  labor  under  heavy  suspicions,  or  there 
be  a  vehement  presumption  of  bad  faith,  or  gross  prevarication,  it  is 
made  the  ground  of  a  denial  of  farther  proof,  and  condemnation 
ensues  from  defects  in  the  evidence  which  the  party  is  not  permitted 
to  supply." 

The  evidence  of  evil  intent  must  be  clear  and  convincing  before  a 
merchant  ship  belonging  to  citizens  of  a  friendly  nation  will  be  con- 
demned. And  on  a  careful  review  of  the  entire  evidence,  we  think 
we  are  not  compelled  to  proceed  to  that  extremit}'. 

But,  on  the  other  hand,  we  are  bound  to  say  that,  taking  all  the 
circumstances  together  and  giving  due  weight  to  the  evidence  on 
behalf  of  the  captors,  probable  cause  for  making  the  capture  undoubt- 
edly existed;  and  the  case  disclosed  does  not  commend  this  vessel  to 
the  favorable  consideration  of  the  court. 

Probable  cause  exists  where  there  are  circumstances  sufficient  to 
warrant  suspicion  though  it  may  turn  out  that  the  facts  are  not  suffi- 
cient to  warrant  condemnation.  And  whether  they  are  or  not  cannot 
be  determined  unless  the  customary  pi-oceedings  of  prize  are  instituted 
and  enforced.  The  Adeline,  4  Cranch,  244,  285;  The  Thompson,  3 
Wall.  155.  Even  if  not  found  sufficient  to  condemn,  restitution  will 
not  necessarily  be  made  absolutely,  but  may  be  decreed  conditionally 
as  each  case  requires,  and  an  order  of  restitution  does  not  pi-ove 
lack  of  probable  cause.  The  Adeline,  supra;  Jennings  v.  Carson,  4 
Cranch,  2,  28,  29. 

In  the  statement  of  Sir  William  Scott  and  Sir  John  Nicholl,  trans- 
mitted to  Chief  Justice  Jay,  then  ^Minister  to  England,  by  Sir 
William  Scott,  Sept.  10,  1794,  "The  general  principles  of  proceeding 


842  BELLIGERENTS    AND   NEUTRALS.  [PART  IL 

in  prize  causes,  in  British  Courts  of  Admiralty,  and  of  the  measures 
proper  to  be  taken  when  a  ship  and  cargo  are  brought  in  as  prize 
within  their  jurisdictions,"  are  set  forth  as  laid  down  in  an  extract 
from  a  report  made  to  the  King  in  1753  "  by  Sir  George  Lee,  then 
judge  of  the  Prerogative  Court,  Dr.  Paul,  his  Majesty's  advocate- 
general.  Sir  Dudley  Rider,  his  jNlajesty's  attorney -general,  and 
Mr,  Murray  (afterwards  Lord  Mansfield),  his  Majesty's  solicitor- 
general;"  and  many  instances  are  given  where  in  the  enforcement 
of  the  rules  "the  law  of  nations  allows,  according  to  the  different 
degrees  of  misbehavior,  or  suspicion,  arising  from  the  fault  of  the 
ship  taken,  and  other  circumstances  of  the  case,  costs  to  be  paid,  or 
not  to  be  received,  by  the  claimant,  in  case  of  acquittal  and  restitu- 
tion." Wheaton  on  Captures,  Appendix,  309,  311,  312;  Pratt's 
Story's  Notes,   p.  35. 

In  The  Appollon,  9  Wheat,  362,  372,  Mr,  Justice  Story  said :  "  No 
principle  is  better  settled  in  the  law  of  prize  than  the  rule  that  prob- 
able cause  will  not  merely  excuse,  but  even,  in  some  cases,  justify 
a  capture.  If  there  be  probable  cause,  the  captors  are  entitled,  as 
of  right,  to  an  exemption  from  damages;  and  if  the  case  be  of 
strong  and  vehement  suspicion,  or  requires  further  proof  to  entitle 
';  the  claimant  to  restitution,  the  law  of  prize  proceeds  j'et  farther, 
and  gives  the  captors  their  costs  and  expenses  in  proceeding  to 
adjudication," 

Section  4639  of  the  Revised  Statutes  contemplates  that,  under 
circumstances,  all  costs  and  expenses  shall  remain  charged  on  the 
captured  vessel  though  she  be  restored,  and  this  court  has  repeatedly 
held  that  damages  and  costs  will  be  denied  where  there  was  probable 
cause  for  seizure,  and  that  sometimes  costs  will  be  awarded  to  the 
captors.  The  Venus,  5  Wheat,  127;  The  Thompson,  3  Wall.  155; 
The  Springbok,  5  Wall,  1;  The  Dashing  Wave,  5  Wall,  170;  The  Sir 
William  Peel,  5  Wall,  517;   The  Peterhoff,  5  Wall,  28,  61,  62. 

In  Tlte  Dashing  Waue,  Chief  Justice  Chase  said:  "We  think  it 
was  the  plain  duty  of  a  neutral  claiming  to  be  engaged  in  trade  with 
Matamoras,  under  circumstances  which  warranted  close  observation 
by  the  blockading  squadron,  to  keep  his  vessel,  while  discharging  or 
receiving  cargo,  so  clearly  on  the  neutral  side  of  the  boundary  line 
as  to  repel,  so  far  as  position  could  repel,  all  imputation  of  intent  to 
break  the  blockade.  He  had  no  right  to  take,  voluntarily,  a  position 
in  the  immediate  presence  of  the  blockading  fleet,  from,  which  mer- 
chandise might  be  so  easily  introduced  into  the  blockaded  region. 
We  do  not  say  that  neglect  of  duty,  in  this  respect,  on  the  part  of  the 
brig,  especially  in  the  absence  of  positive  evidence  that  the  neglect 
was  wilful,  calls  for  condemnation;  but  we  cannot  doubt  that  under 


CHAP.  III.]  THE    "  OLINDE   RODRIGUES."  843 

the  circumstances  described,  capturing  and  sending  in  for  adjudica- 
tion was  fully  warranted." 

In  Th&  Springbok,  the  ship  was  restored  but  costs  and  damages 
were  not  allowed  because  of  the  misconduct  of  the  master. 

In  The  Peterhoff,  payment  of  costs  and  expenses  by  the  ship  was 
decreed  as  a  condition  of  restitution.  The  Peterhoff  was  captured  by 
the  United  States  vessel  of  war  Vanderh'dt  on  suspicion  of  intent  to 
run  the  blockade  and  of  having  contraband  on  board.  Her  captain 
refused  to  take  his  papers  to  the  Vanderhilt,  and,  in  addition,  papers 
were  destroyed  and  a  package  was  thrown  overboard.  The  Peterhoff 
was  searched,  and  it  is  stated  in  the  opinion :  "  The  search  led  to  the 
belief  on  the  part  of  the  officers  of  the  Vanderbilt  that  there  was  con- 
traband on  board,  destined  to  the  enemy.  This  belief,  it  is  now 
apparent,  was  warranted.  It  was  therefore  the  duty  of  the  captors 
to  bring  The  Peterhoff  in  for  adjudication,  and  clearly  they  are  not 
liable  for  the  costs  and  expenses  of  doing  so."  The  court  then  com- 
mented on  the  destruction  of  papers,  and  the  throwing  overboard  of 
the  package,  in  regard  to  which  it  was  unable  to  credit  the  represen- 
tations of  the  captain,  but  in  view  of  the  other  facts  in  the  case,  did 
not  extend  the  effect  of  the  captain's  conduct  and  the  incriminating 
circumstances  to  condemnation. 

The  case  before  us  falls  plainly  within  these  rulings.  This  vessel 
had  gone  into  San  Juan  on  July  4,  although  the  captain  had  heard  of 
the  blockade  at  St.  Thomas,  but  he  says  he  had  not  been  officially 
notified  of  it;  he  telegraphed  to  the  consul  at  San  Juan  to  know,  and 
was  answered  tliat  they  had  received  no  official  notice  from  Washing- 
ton that  the  port  was  blockaded;  he  also  heard  while  in  San  Juan 
that  "  it  would  be  blockaded  some  future  time,  but  that  was  not  offi- 
cially." The  vessel  was  boarded  and  warned  by  the  Yosevilte  on 
July  5,  and  the  warning  entered  on  her  log.  This  imposed  upon  her 
the  duty  to  avoid  approaching  San  Juan,  on  her  return,  so  nearly  as 
to  give  just  cause  of  suspicion,  yet  she  so  shaped  her  course  as  inevi- 
tably to  invite  it. 

When  the  Xeiv  Orleans  succeeded  the  Yosemite,  her  commander  was 
informed  of  the  facts  by  his  predecessor,  and  knew  that  whatever  the 
right  of  the  Olinde  Rodrigues  to  be  in  those  waters,  she  could  not 
lawfully  place  herself  so  near  the  interdicted  port  as  to  be  able  to 
break  the  blockade  with  impunity.  But  when  he  sighted  her  the 
ship  was  on  a  course  to  all  appearance  directly  into  that  port,  and 
steadily  pursuing  it.  And  when  he  signalled,  the  Olinde  Bodrigues 
apparently  did  not  obey,  but  seemingly  persisted  on  her  course,  and 
that  course  would  in  a  few  moments  have  placed  her  within  the  range 
of  the  guns  of  Morro  and  of  the  shore  batteries.     In  fact,  when  the 


844  BELLIGERENTS    AND    NEUTRALS.  [PART  II, 

shot  was  fired  she  was  within  the  range  of  tlie  Morro's  guns.  The 
evidence  is  overwhelming  tliat  she  did  not  change  her  course  until 
after  the  shot  was  fired,  even  though  she  may  have  stopped  as  soon  as 
she  saw  the  signal.  The  turning  point  into  the  Culebra  or  Virgin 
Passage  was  perhaps  forty  miles  to  the  eastward,  and  while  she  could 
have  passed  the  port  of  Sau  Juan  on  the  course  she  was  on,  it  would 
have  been  within  a  very  short  distance.  The  disregard  of  her  duty 
to  shun  the  port  and  not  approach  it  was  so  flagrant  that  the  intention 
to  break  the  blockade  was  to  be  presumed,  though  we  do  not  hold 
that  that  was  a  presumption  de  jure. 

The  ship's  log  was  not  produced  until  three  hours  after  she  was 
boarded,  and  it  now  appears  that  the  papers  furnished  the  boarding 
officer,  "said  to  be  all  the  ship's  papers,"  did  not  include  two  Spanish 
bills  of  health  in  which  San  Juan  was  entered  as  the  vessel's  destina- 
tion. These  were  destroyed  after  the  ship  reached  Charleston,  and 
were,  therefore,  in  the  ship's  possession  when  the  other  papers  were 
delivered.  Had  they  been  shown,  as  they  should  have  been,  can  it 
be  denied  that  they  would  have  furnished  strong  corroboration  of 
criminal  intent  ?  Or  that  their  destruction  tended  to  make  a  case  of 
"strong  and  vehement  suspicion"? 

The  entire  record  considered,  we  are  of  opinion  that  restitution  of 
the  Olinde  Rodrigues  should  be  awarded,  without  damages,  and  that 
payment  of  the  costs  and  expenses  incident  to  her  custody  and  preser- 
vation, and  of  all  costs  in  the  cause  except  the  fees  of  counsel,  should 
be  imposed  upon  the  ship. 

The  decree  of  the  District  Court  will  be  so  modified,  and 

As  modified  affirmed. 

Mr.  Justice  McKen-na  dissented  on  the  ground  that  the  evidence 
justified  condemnation.^ 

1  If  a  sliip  has  contracted  guilt  by  a  breach  of  blockade,  the  offence  is  not  discharged 
until  the  end  of  the  return  voyage.     The  Wren,  1867,  6  Wall.  58*2.  —  Ed. 


CHAP.  III.]  THE  "  IMMANUEL."  845 


Section  45.  —  Rule  of  the  War  of  1756. 


THE    ''IMMANUEL." 

High  Court  of  Admiralty,   1799. 

(2  C.  Robinson,  186.) 

This  was  the  case  of  an  asserted  Hamburg  ship,  taken  14th 
August,  1799,  on  a  voyage  from  Hamburg  to  St.  Dommgo,  having  in 
her  voyage  touched  at  Bordeaux,  where  she  sold  part  of  the  goods 
brought  from  Hamburg,  and  took  a  quantity  of  iron  stores  and  other 
articles  for  St.  Domingo.  A  question  was  first  raised  as  to  the  prop- 
erty of  the  ship  and  cargo ;  2dly,  supposing  it  to  be  neutral  prop- 
perty,  whether  a  trade  from  the  mother  country  of  France  to  St, 
Domingo,  a  French  Colony,  was  not  an  illegal  trade,  and  such  as 
would  render  the  property  of  neutrals  engaged  in  it  liable  to  be  con- 
sidered as  the  property  of  enemies,  and  subject  to  confiscation  ? 

Judgment.  —  Sir  Wm.  Scott  :  —  "Upon  the  breaking  out  of  a  war,  it 
is  the  right  of  neutrals  to  carry  on  their  accustomed  trade,  with  an  ex- 
ception of  the  particular  cases  of  a  trade  to  blockaded  places,  or  in 
contraband  articles  (in  both  which  cases  their  property  is  liable  to  be 
condemned),  and  of  their  ships  being  liable  to  visitation  and  search; 
in  which  case  however  they  are  entitled  to  freight  and  expenses.  I  do 
not  mean  to  say  that  in  the  accidents  of  a  war  the  property  of  neutrals 
may  not  be  variously  entangled  and  endangered;  in  the  nature  of 
human  connections  it  is  hardly  possible  that  inconveniences  of  this 
kind  should  be  altogether  avoided.  Some  neutrals  will  be  unjustly 
engaged  in  covering  the  goods  of  the  enemy,  and  others  will  be  un- 
justly suspected  of  doing  it;  these  inconveniences  are  more  than 
fully  balanced  by  the  enlargement  of  their  commerce;  the  trade  of 
the  belligerents  is  usually  interrupted  in  a  great  degree,  and  falls  in 
the  same  degree  into  the  lap  of  neutrals.  But  without  reference  to 
accidents  of  the  one  kind  or  other,  the  general  rule  is,  that  the  neutral 
has  a  right  to  carry  on,  in  time  of  war,  his  accustomed  trade  to  the 
utmost  extent  of  which  that  accustomed  trade  is  capable. 

''Very  different  is  the  case  of  a  trade  which  the  neutral  has  never 
possessed,  which  he  holds  by  no  title  of  use  and  habit  in  times  of 
peace,  and  which,  in  fact,  can  obtain  in  war  by  no  other  title,  than 
by  the  success  of  the  one  belligerent  against  the  other,  and  at  the 


84G  BELLIGERENTS    AND    NEUTRALS.  [PART  IL 

expense  of  that  very  belligerent  under  whose  success  he  sets  up 
his  title  ;  and  such  I  take  to  be  the  colonial  trade,  generally  speaking. 

"  What  is  the  colonial  trade  (jeneralhj  speahing  ?  It  is  a  trade 
generally  shut  up  to  the  exclusive  use  of  the  mother  country,  to 
which  the  colony  belongs,  and  this  to  a  double  use; — that,  of  sup- 
plying a  market  for  the  consumption  of  native  commodities,  and  the 
other  of  furnishing  to  the  mother  country  the  peculiar  commodities 
of  the  colonial  regions  ;  to  these  two  purposes  of  the  mother  coun- 
try, the  general  policy  respecting  colonies  belonging  to  the  states  of 
Europe,  has  restricted  them.  With  respect  to  other  countries,  gen- 
erally speaking,  the  colony  has  no  existence ;  it  is  possible  that 
indirectly  and  remotely  such  colonies  may  affect  the  commerce  of 
other  countries.  *  *  * 

"  Upon  the  interruption  of  a  war,  what  are  the  I'ights  of  bellig- 
erents and  neutrals  respectively  regarding  such  places?  It  is  an 
indubitable  right  of  the  belligerent  to  possess  himself  of  such  places, 
as  of  any  other  possession  of  his  enemy.  This  is  his  common  right, 
but  he  has  the  certain  means  of  carrying  sucli  a  right  into  effect,  if 
he  has  a  decided  superiority  at  sea :  Such  colonies  are  dependent  for 
their  existence,  as  colonies,  on  foreign  supplies  ;  if  they  cannot  be 
supplied  and  defended  they  must  fall  to  the  belligerent  of  course — 
and  if  the  belligerent  chooses  to  apply  his  means  to  such  an  object, 
what  right  has  a  third  party,  perfecth^  neutral,  to  step  in  and  prevent 
the  execution  ?  No  existing  interest  of  his  is  affected  by  it ;  he  can 
have  no  right  to  apply  to  his  own  use  the  beneficial  consequences  oi 
the  mere  act  of  the  belligerent ;  and  say,  '  True  it  is,  you  have,  by 
force  of  arms  forced  such  places  out  of  the  exclusive  jjussession  of 
the  enemy,  but  I  will  share  the  benefit  of  the  conquest,  and  by  shar- 
ing its  benefits  prevent  its  progress.  You  have  in  effect,  and  by 
lawful  means,  turned  the  enemy  out  of  the  possession  which  he  had 
exclusively  maintained  against  the  whole  world,  and  with  whom  we 
had  never  presumed  to  interfere ;  but  we  will  interpose  to  prevent 
his  absolute  surrender,  by  the  means  of  that  very  opening,  which 
the  prevalence  of  your  arms  alone  has  affected ;  supplies  shall  be 
sent  anrl  tht-ir  }>roducts  shall  be  exported;  you  have  lawfully  de- 
stroyed his  monopoly,  but  you  shall  not  be  permitted  to  possess  it 
yourself ;  we  insist  to  share  the  fruits  of  your  victories,  and  your 
blood  and  treasure  have  been  expended,  not  for  your  own  interest, 
but  for  the  common  l)enefit  of  others.' 

"  Tpon  these  grounds,  it  cannot  be  contended  to  be  a  rh/Juoi  neu- 
trals, to  intrude  into  a  commerce  which  had  been  uniformly  shut 
against  them,  and  which  is  now  forced  open  merely  by  the  pressure 
of  war ;  for  when  the  enemy,  under  an  entire  inability  to  supply  his 


CHAP.  III.]  THE  "  EMANUEL."  847 

colonies  and  to  export  their  products,  affects  to  open  tliem  to  neu- 
trals, it  is  not  his  will  but  liis  necessity  that  changes  liis  sj'stem  ;  that 
change  is  the  direct  and  unavoidable  consequence  of  tlie  compulsion 
of  war,  it  is  a  measure  not  of  French  councils,  but  of  British  force. 

"  Upon  these  and  other  grounds,  which  I  shall  not  at  present 
enumerate,  an  instruction  issued  at  an  early  period  for  the  purpose 
of  preventing  the  comnnniication  of  neutrals  with  the  colonies  of  the 
enemy,  intended,  I  presume,  to  be  carried  into  effect  on  the  same 
footing,  on  which  the  prohibition  had  been  legally  enforced  in  the 
war  of  1756 ;  a  period  when,  Mr.  Justice  Blackstone  observes,  the 
decisions  on  the  law  of  nations  proceeding  from  the  Court  of  Appeals, 
were  known  and  revered  by  every  state  in  Europe. 

"  Condemned."  ^ 


THE    "EMANUEL." 
High  Court  of  Admiralty,  1799. 

(1  C.Rolnuson,  29G.) 

This  was  a  case  respecting  the  allowance  of  freight  and  expenses  to 
a  neutral  ship,  taken  carrying  on  the  coasting  trade  of  the  eneniv. 

Judgment  by  Sir  Wm.  Scott:  — 

"  Xow  the  ground  upon  which  it  is  contended  that  the  freight  is 
not  due  to  the  proprietors  of  this  vessel,  is,  that  she  is  a  Danish  ship 
employed  in  the  transmission  of  Spanish  goods,  from  one  Spanish 
port  to  another,  and  so  carrying  on  the  coasting-trade  of  that  coun- 
try. In  our  own  country  it  has  long  been  the  system,  that  the 
coasting-trade  should  only  be  carried  on  by  our  own  navigation.  I 
observe,  that  in  all  the  rage  of  novel  experiment  that  has  dictated 
the  commercial  regulations  of  France  in  its  new  condition,  this  policy 
is  held  sacred;  it  stands  enacted,  by  a  decree  21st  Sept.,  1793,  that 
no  goods,  the  growth  or  manufacture  of  France,  shall  be  carried  from 
one  French  port  to  another  in  foreign  ships  under  pain  of  confisca- 
tion.— The  same  policy  has  directed  the  commercial  system  of  other 
European  countries ;  in  the  ordinary  state  of  affairs,  no  indulgence 
is  generally  permitted  to  the  ships  of  most  other  countries  to  carry 
on  the  coasting  trade.  I  think  therefore  the  onus  prohcoxdx  does  at 
least  lie  on  that  side ;  and  always  makes  it  necessary  to  be  shown 
by  the  claimants,  that  such  a  trade  was  not  a  mere  indulgence,  and 
a  temporary  relaxation  of  the  coasting  system  of  the  state  in  ques- 

1  {."ompare  The  Wilhelmina,  1801,  4  C.  Rob.  append,  p.  4,  and  see  digest-note  in 
Tudor,  Mercantile  Cases,  3d  eil.,  972-080.  — Eu. 


848  BELLIGERENTS   AND   NEUTRALS.  [PAirr  11. 

tion ;  but  that  it  was  a  common  and  ordinary  trade,  open  to  the 
ships  of  any  country  whatever.  *  *  * 

"  As  to  the  coasting  trade  (supposing  it  to  be  a  trade  not  usually 
opened  to  foreign  vessels),  can  there  be  described  a  more  effective 
accommodation  that  can  be  given  to  an  enemy  during  a  war  than  to 
undertake  it  for  him  during  his  own  disability  ?  "  ^ 


Section  46. — Continuous  Votages. 


THE   ''WILLIAM." 

Lords  on  Appeal  in  Prize   Cases,   1806. 

(5  C.  Robinson,  385.) 

This  was  a  question  on  the  continuity  of  a  voyage  in  the  colonial 
trade  of  the  enemy,  brought  by  appeal  from  the  Yice-Adiniralty 
Court  at  Halifax,  where  the  ship  and  cargo,  taken  on  a  destination 
to  Bilboa  in  Spain,  and  claimed  on  behalf  of  Messrs.  W.  and  N". 
Hooper  of  Marblehead  in  the  state  of  Massachusetts,  had  been  con- 
demned 17th  July,  1800. 

Among  the  papers  was  a  certificate  from  the  collector  of  the  cus- 
toms, "that  this  vessel  had  entered  and  landed  a  cargo  of  cocoa 
belonging  to  Messrs.  W.  and  X.  Hooper,  and  that  the  duties  had 
been  secured  agreeable  to  law,  and  that  the  said  cargo  had  been  re- 
shipped  on  board  this  vessel  bound  for  Bilboa. 

Judgment, — Sir  William  Grant  : — 

"  The  question  in  this  case  is,  whether  that  part  of  the  cargo  which 
has  been  the  subject  of  further  proof,  and  which,  it  is  admitted,  was, 
at  the  time  of  tlie  capture,  going  to  Spain,  is  to  be  considered  as 
coming  directly  from  Laguira  within  the  meaning  of  his  Majesty's 
instructions.  According  to  our  understanding  of  the  law,  it  is  only 
from  those  instructions  that  neutrals  derive  any  right  of  carrying 
on  with  the  colonies  of  our  enemies,  in  time  of  war,  a  trade  from 
which  they  were  excluded  in  time  of  peace.  The  instructions  had 
not  permitted  the  direct  trade  between  the  hostile  colony  and  its 
mother  country,  but  had,  on  the  contrary  ordered  all  vessels  engaged 
in  it  to  be  brought  in  for  lawful  adjudication  ;  and  what  the  present 
claimants  accordingly  maintain,  is  not  that  they  could  carry  the 
produce  of  Laguira  directly  to  Spain ;  but  that  they  were  not  so 
carrying  the  cargo  in  question,  inasmuch  as  the  voyage  in  which  it 

1  Tlie  above  is  only  an  extract  from  the  opinion.  —  Ed. 


CHAP.  III.]  THE   "  WILLIAM."  849 

was  taken  was  a  voyage  from  Xortli  America,  and  not  directly  from 
a  colony  of  Spain. 

"  What  then,  with  reference  to  this  subject,  is  to  be  considered  as 
a  direct  voyage  from  one  place  to  another  ?  Nobody  has  ever  sup- 
posed that  a  mere  deviation  from  the  straightest  and  shortest  course, 
in  which  the  voyage  could  be  performed,  would  change  its  denomi- 
nation, and  make  it  cease  to  be  a  direct  one  within  the  intendment 
of  the  instructions. 

"  Xothing  can  depend  on  the  degree  or  the  deviation — whether  it 
be  of  more  or  fewer  leagues,  whether  towards  the  coast  of  Africa,  or 
towards  that  of  America.  Neither  will  it  be  contended  that  the 
point  from  which  the  commencement  of  a  voyage  is  to  be  reckoned 
changes  as  often  as  the  ship  stops  in  the  course  of  it ;  nor  will  it  the 
more  change,  because  a  partj^  may  choose  arbitrarily  by  the  ship's 
papers,  or  otherwise,  to  give  the  name  of  a  distinct  voyage  to  each 
stage  of  a  ship's  progress.  The  act  of  shifting  the  cargo  from  the 
ship  to  the  shore,  and  from  the  shore  back  again  into  the  ship,  does 
not  necessarily  amount  to  the  termination  of  one  voyage  and  the 
commencement  of  another.  It  may  be  wholly  unconnected  with  any 
purpose  of  importation  into  the  place  where  it  is  done  :  Supposing 
the  landing  to  be  merely  for  the  purpose  of  airing  or  drying  the 
goods,  or  of  repairing  the  ship,  would  any  man  think  of  describing 
the  voyage  as  beginning  at  the  place  wliere  it  happened  to  become 
necessary  to  go  througli  such  a  process  ? 

"  Again,  let  it  be  supposed  that  the  party  has  a  inotive  for  desiring 
to  make  the  voyage  appear  to  begin  at  some  other  place  than  that 
of  the  original  lading,  and  that  he  therefore  lands  the  cargo  purely 
and  solely  for  the  purpose  of  enabling  himself  to  affirm,  that  it  was 
at  such  other  place  that  tlie  goods  were  taken  on  board,  would  this 
contrivance  at  all  alter  the  truth  of  the  fact  ?  Would  not  the  real 
voyage  still  be  from  the  place  of  the  original  shipment,  notwith- 
standing the  attempt  to  give  it  the  appearance  of  having  begun  from 
a  different  place  ?  The  truth  may  not  always  be  discernible,  but 
when  it  is  discovered,  it  is  according  to  the  truth  and  not  according 
to  the  fiction,  that  we  are  to  give  to  the  transaction  its  character  and 
denomination.  If  the  voyage  from  the  place  of  lading  be  not  really 
ended,  it  matters  not  by  what  acts  the  party  may  have  evinced  his 
desire  of  making  it  appear  to  have  been  ended.  That  those  acts 
have  been  attended  with  trouble  and  expence  cannot  alter  their 
quality  or  their  effect.  The  trouble  and  expence  may  weigh  as  cir- 
cumstances of  evidence,  to  shew  the  purpose  for  which  the  acts  were 
done;  but  if  the  evasive  purpose  be  admitted  or  proved,  we  can 
never  be  found  to  accept  as  a  substitute  for  the  observance  of  the 

64 


850  BELLIGERENTS   AND   NEUTRALS.  [PART  IL 

law,  the  means,  however  operose,  which  have  been  employed  to  cover 
a  breach  of  it.  Between  the  actual  importation  by  which  a  voyage 
is  really  ended,  and  the  colourable  importation  which  is  to  give  it 
the  appearance  of  being  ended,  there  must  necessarily  be  a  great 
resemblance.  The  acts  to  be  done  must  be  almost  entirely  the  same ; 
but  there  is  this  difference  between  them. — ^The  landing  of  the  cargo, 
the  entry  at  the  custom-house,  and  the  payment  of  such  duties  as 
the  law  of  the  place  requires,  are  necessary  ingredients  in  a  genuine 
importation ;  the  true  purpose  of  the  owner  cannot  be  effected  with- 
out them.  But  in  a  fictitious  importation  they  are  mere  voluntary 
ceremonies^  which  have  no  natural  connection  whatever  with  the 
purpose  of  sending  on  the  cargo  to  another  market,  and  which,  there- 
fore, would  never  be  resorted  to  by  a  person  entertaining  that  pur- 
pose, except  with  a  view  of  giving  to  the  voyage  which  he  has  resolved 
to  continue,  the  appearance  of  being  broken  by  an  importation,  which 
he  has  resolved  not  really  to  make. 

"  Xow,  what  is  the  case  immediately  before  us  ?  The  cargo  in 
question  was  taken  on  board  at  Laguira.  It  was  at  the  time  of  the 
capture  proceeding  to  Spain ;  but  the  ship  had  touched  at  an  Ameri- 
can port.  The  cargo  was  landed  and  entered  at  the  custom-house, 
and  a  bond  was  given  for  the  duties  to  the  amount  of  1,239  dollars- 
The  cargo  was  re-shipped,  and  a  debenture  for  1,211  dollars  by  way 
of  drawback  ^vas  obtained.  All  this  passed  in  the  course  of  a  few 
days.  The  vessel  arrived  at  Marblehead  on  the  29th  of  May ;  on 
that  day  the  bond  for  securing  the  duties  was  given.  On  the  30th 
and  31st  the  goods  were  landed,  weighed,  and  packed.  The  permit 
to  ship  them  is  dated  the  1st  of  June,  and  on  the  3d  of  June  the 
vessel  is  cleared  out  as  laden,  and  ready  to  proceed  to  sea.  AVe  are 
frequently  obliged  to  collect  the  purpose  from  the  circumstances  of 
the  transaction.  The  landing  thus  almost  instantaneously  followed 
by  the  re-shipment,  has  little  appearance  of  having  been  made  with 
a  view  to  actual  ijuportation ;  but  it  is  not  upon  inference  that  the 
conclusion  in  this  case  is  left  to  rest.  The  claimants,  instead  of 
showing  that  they  really  did  impoi't  their  cargo,  have,  in  their  at- 
testation, stated  the  reasons  which  determined  them  not  to  import 
it.  They  say,  indeed,  that  when  they  ordered  it  to  be  purchased, 
'it  was  with  the  single  view  of  bringing  it  to  the  United  States,  and 
that  they  had  no  intention  or  expectation  of  exporting  it  in  the 
said  schooner  to  Spain.'  Supposing  that  from  this  somewhat  am- 
bigu(^us  statement  we  are  to  collect  that  their  original  intention  was 
to  have  imported  this  cargo  into  America,  with  a  view  only  to  the 
American  market,  yet  their  intention  had  been  changed  before  the 
arrival  of  the  vessel.     For  they  state  that  in  the  heyinniny  of  May 


CHAP.  III.]  THE    "  WILLIAM."  851 

they  had  received  accounts  of  tlie  prices  of  cocoa  in  Spain,  which 
satisfied  tliem  that  it  would  sell  much  better  there  than  in  America, 
and  that  the}^  had  therefore  determined  to  send  it  to  the  Spanish 
market.  Xotliing  is  alleged  to  have  happened  between  the  landing 
of  the  cargo  and  its  re-shipment,  that  could  have  the  least  influence 
on  their  determination.  It  was  not  in  that  short  interval  that 
American  prices  fell,  or  that  information  of  the  higher  prices  in 
Spain  had  been  received.  Knowing  beforehand  the  comparative 
state  of  the  two  markets,  they  neither  tried  nor  meant  to  try  that  of 
America,  but  proceeded  with  all  possible  expedition  to  go  through 
the  forms  wdiich  have  been  before  enumerated.  If  the  continuity  of 
the  voyage  remains  unbroken,  it  is  immaterial  whether  it  be  by  the 
prosecution  of  an  original  purpose  to  continue  it,  as  in  the  case  of 
the  Ussex,  or,  as  in  this  case,  by  the  relinquishment  of  an  original 
purpose  to  have  brought  it  to  a  termination  in  America.  It  can 
never  be  contended,  that  an  intention  to  import  once  entertained  is 
equivalent  to  importation.  And  it  would  be  a  contradiction  in  terms 
to  say  that  by  acts  done  after  the  original  intention  has  been  aban- 
doned, such  original  intention  has  been  carried  into  execution.  Why 
should  a  cargo,  which  there  was  to  be  no  attempt  to  sell  in  America, 
have  been  entered  at  an  American  custom-house,  and  voluntarily 
subjected  to  the  payment  of  any,  even  the  most  trifling  duty?  Not 
because  importation  was,  or  in  such  a  case  could  be  intended,  but 
because  it  was  thought  expedient  that  something  should  be  done, 
which  in  a  British  Prize  Court  might  pass  for  importation.  Indeed, 
the  claimants  seem  to  have  conceived  that  the  inquiry  to  be  made 
here  was,  not,  whether  the  importation  was  real  or  pretended,  but 
whether  the  pretence  had  assumed  a  particular  form,  and  was  ac- 
companied with  certain  circumstances  which  by  some  positive  rule 
were,  in  all  cases,  to  stand  for  importation,  or  to  be  conclusive  evi- 
dence of  it.    *    *    * 

"But  supposing  that  w^e  had  uniformly  held  that  payment  of  the 
import  duties  furnished  conclusive  evidence  of  importation,  would 
there  have  been  any  inconsistency  or  contradiction  in  holding  that 
the  mere  act  of  giving  a  bond  for  an  amount  of  duties,  of  which  only 
a  very  insignificant  part  was  ever  to  be  paid,  could  not  have  the 
same  effect  as  the  actual  payment  of  such  amount?  The  further 
proof  in  the  Bssex  first  brought  distinctly  before  us  the  real  state  of 
the  fact  in  this  particular.  It  has  been  already  mentioned  that  we 
had  called  for  an  account  of  the  drawbacks,  if  any,  that  had  been  re- 
ceived. This  produced  the  information  that  although  the  duties 
secured  amounted  to  5,278  dollars,  yet  a  debenture  was  immediately 
afterwards  given  for  no  less  than  5,080  dollars;  so  that  on  that 


852  BELLIGERENTS    AND   NEUTRALS.  [PART  11. 

valuable  cargo  no  more  than  198  dollars  would  be  ultimately  pay- 
able, which  sum  is  said  to  be  more  than  compensated  for  the  advan- 
tage arising  from  the  negotiability  of  the  debenture.     *     *     * 

"  The  consequence  is,  that  the  voyage  was  illegal,  and  that  the 
sentence  of  condemnation  must  be  affirmed." 


THE    "STEPHEN"   HART." 

U.  S.  District  Court  of  So.  New  York,  1863. 

(BlatchfonVs  Prize  Cases,  387.) 

The  schooner  Stephen  Hart  was  captured,  as  lawful  prize  of  war, 
by  the  United  States  vessel  of  war  Supphj,  on  the  29th  of  January, 
1862,  off  the  southern  coast  of  Florida,  about  25  miles  from  Key 
West,  and  about  82  miles  from  Point  de  Yeacos,  in  Cuba,  bound  os- 
tensibly from  London  to  Cardenas,  in  Cuba,  with  a  cargo  of  muni- 
tions of  war  and  army  supplies. 

Betts,  J. :  — 

"Many  of  the  principle  questions  involved  in  the  present  case,  and 
in  the  cases  of  the  Sjjrinrjboh  and  the  Peterhoffy  are  alike;  and,  as 
the  conclusion  at  which  the  court  has  arrived  in  all  of  those  cases  is 
to  condemn  the  vessels  and  their  cargoes,  I  shall  announce,  in  this 
case,  the  leading  principles  of  public  law  which  lead  to  a  condemna- 
tion in  all  the  cases. 

"On  behalf  of  the  libellants,  it  is  urged  in  this  case,  1st.  Tlratthe 
Stephen  Hart  and  her  cargo  were  enemy's  property  when  the  voyage 
in  question  Avas  undei'taken,  and  when  the  capture  was  made ;  2d. 
That  the  schooner  was  laden  Avith  articles  contraband  of  war,  des- 
tined for  the  aid  and  use  of  the  enemy,  and  on  transportation  by  sea 
to  the  enemy's  country  at  the  time  of  capture;  3d.  That,  with  a 
full  knowledge,  on  the  part  of  the  owner  of  the  vessel  and  of  the 
owners  of  her  cargo,  that  the  ports  of  the  enemy  were  under  block- 
ade, the  vessel  and  her  cargo  were  despatched  from  a  neutral  port 
willi  an  intention,  on  the  part  of  the  owners  of  each,  that  in  viola- 
tion of  the  blockade,  both  the  vessel  and  her  cargo  should  enter  a 
\)Ovi  of  the  enemy. 

"  On  the  part  of  the  claimants,  it  is  maintained,  1st.  That  the 
transportation  of  all  articles,  including  arms  and  munitions  of  war, 
between  neutral  ports  in  a  neutral  vessel,  is  lawful  in  time  of  war ; 
2d.  That  if  a  neutral  vessel,  with  a  cargo  belonging  to  neutrals,  be 
in  fact  on  a  voyage  from  one  neutral  port  to  another,  she  cannot  be 


CHAP,  in.]  THE    "  STEPHEN    HART."  853 

seized  and  condemned  as  lawful  prize,  although  she  l3e  laden  with 
contraband  of  war,  unless  it  be  determined  that  she  was  actually 
destined  to  a  port  of  the  enemy  upon  the  voyage  on  which  she  was 
seized,  or  unless  she  is  taken  in  the  act  of  violating  a  blockade. 

"  It  is  insisted,  on  the  part  of  the  claimants,  that  the  Stephen  Hart 
was,  at  the  time  of  her  capture,  a  neutral  vessel,  carrying  a  neutral 
cargo  from  London  to  Cardenas — both  of  them  being  neutral  ports — 
in  the  regular  course  of  trade  and  commerce.  On  the  other  side  it 
is  contended  that  the  cargo  was  composed  exclusively  of  articles 
contraband  of  war,  destined,  when  they  left  London,  to  be  delivered 
to  the  enemy,  either  directly,  by  being  carried  into  a  port  of  the 
enemy  in  the  /Stej)he)i  Hart  or  by  being  trans-shipped  at  Cardenas 
to  another  vessel ;  that  Cardenas  was  to  be  used  merely  as  a  port  of 
call  for  the  Stephen  Hart,  or  as  a  port  of  trans-shi]')ment  for  her  cargo ; 
that  the  vessel  and  her  cargo  are  equally  involved  in  the  forbidden 
transaction  ;  and  that  the  papers  of  the  vessel  were  simulated  and 
fraudulent  in  respect  to  her  destination  and  that  of  her  cargo.  A  con- 
demnation is  not  asked  if  the  cargo  was  in  fact  neutral  property,  to 
be  delivered  at  Cardenas  for  discharge  and  general  consumption  or 
sale  there,  but  is  only  claimed  if  the  cargo  was  really  intended  to  be 
delivered  to  the  enemy  at  some  other  place  than  Cardenas,  after 
using  that  port  as  a  port  of  call  or  of  trans-shipment,  so  as  to  thus 
render  the  representations  contained  in  the  papers  of  the  vessel  false 
and  fraudulent  as  to  the  real  destination  of  the  vessel  and  her  cargo. 

"  It  would  scarcely  seem  possible  that  there  could  be  any  serious 
debate  as  to  the  true  principles  of  public  law  applicable  to  the  solu- 
tion of  the  questions  thus  presented ;  and,  indeed,  the  law  is  so  well 
settled  as  to  make  it  only  necessary  to  see  whether  the  facts  in  this 
case  bring  the  vessel  and  her  cargo  within  the  rules  which  have 
been  laid  down  by  the  most  eminent  authorities  in  England  and  in 
this  country. 

"  The  principles  upon  which  the  government  of  the  United  States, 
and  the  public  vessels  acting  under  its  commission,  have  proceeded, 
during  the  present  war,  in  arresting  vessels  and  cargoes  as  lawful 
prize  upon  the  high  seas,  are  very  succinctly  embodied  in  the  in- 
structions issued  by  the  Navy  Department  on  the  18th  of  August, 
18G2,  to  the  naval  commanders  of  the  L'nited  States,  and  which  in- 
structions are  therein  declared  to  be  a  recapitulation  of  those  there- 
tofore from  time  to  time  given.  The  substance  of  those  instruc- 
tions, so  far  so  they  are  applicable  to  the  present  case,  is,  that  a 
vessel  is  not  to  be  seized  '  without  a  search  carefully  made,  so  far  as 
to  render  it  reasonable  to  believe  that  she  is  engaged  in  carrying 
contraband  of  war  for  or  to  the  insurgents,  and  to  their  ports  di- 


854  BELLIGERENTS    AND    NEUTRALS.  [PART  II, 

tectly  or  indirectly  by  trans-shipment,  or  otherwise  violating  the 
blockade.' 

"  The  main  feature  of  these  instructions,  so  far  as  they  bear  upon 
the  questions  involved  in  this  case,  is  but  an  application  of  the  doc- 
trine in  regard  to  captures  laid  down  by  the  government  of  the 
United  States  at  a  very  early  day.  In  an  ordinance  of  the  Congress 
of  the  Confederation,  which  went  into  effect  on  the  1st  of  February, 
1782,  5  Wheaton,  Appendix,  p.  120,  it  was  declared  to  be  lawful  to 
capture  and  to  obtain  condemnation  of  all  '  contraband  goods,  wares, 
and  merchandises,  to  whatever  nations  belonging,  although  found 
in  a  neutral  bottom,  if  destined  for  the  use  of  an  enemy.'' 

"  The  soundness  of  these  principles,  and  the  fact  that  the  law  of 
nations,  as  applicable  to  cases  of  prize,  has  been  observed  and  applied 
by  the  government  of  the  United  States  and  its  courts  during 
the  present  war,  was  fully  recognized  by  Earl  Russell,  her  Britannic 
Majesty's  principal  secretary  of  state  for  foreign  affairs,  in  his  re- 
marks made  in  the  House  of  Lords  on  the  18th  of  May  last.  Earl 
Russell  there  stated  that  the  judgments  of  the  United  States 
prize  courts,  which  had  been  reported  to  her  Majestj^'s  government 
during  the  present  war,  did  not  evince  any  disregard  of  the  estab- 
lished principles  of  international  law  ;  that  the  law  officers  of  the 
Crown,  after  an  attentive  consideration  of  the  decisions  which  had 
been  laid  before  them,  were  of  opinion  that  there  was  no  rational 
ground  of  complaint  as  to  the  judgments  of  the  American  prize 
courts;  and  that  the  law  of  nations  in  regard  to  the  search  and  seiz- 
ure of  neutral  vessels  had  been  fully  and  completely  acknowledged 
by  the  government  of  the  United  States.  On  the  same  occasion 
Earl  Russell  remarked :  '  It  has  been  a  most  profitable  business  to 
send  swift  vessels  to  break  or  run  the  blockade  of  the  southern 
ports,  and  carry  their  cargoes  into  those  ports.  There  is  no  munic- 
ipal law  in  this  or  any  country  to  punish  such  an  act  as  an  offence. 
I  understand  that  every  cargo  which  runs  the  blockade  and  enters 
Charleston  is  worth  a  million  of  dollars,  and  that  the  profit  on  these 
transactions  is  immense.  It  is  well  known  that  the  trade  has  attracted 
a  great  deal  of  attention  in  this  country  from  those  who  have  a  keen 
eye  to  such  gains,  and  that  vessels  have  been  sent  to  Xassau  in 
order  to  break  the  blockade  at  Charleston,  Wilmington,  and  other 
places,  and  carry  contraband  of  war  into  some  of  the  ports  of  the 
Southern  States.'  He  added :  '  I  certainly  am  not  prepared  to  de- 
clare, nor  is  there  any  ground  for  declaring,  that  the  courts  of  the 
United  States  do  not  faithfully  administer  the  law:  tliat  they  will 
not  allow  evidence  making  against  the  captors  ;  or  that  they  are 
likely  to  give  decisions  founded,  not  upon  the  law,  but  upon  their 


CHAP,  in.]  THE    "  STEPHEN   HART."  855 

own  passions  and  national  partialities.'  lie  also  said,  that  in  a  case 
of  simulated  -destination — that  is,  a  vessel  pretending  that  she  is 
going  to  Xassau,  Avhen  she  is  in  reality  bound  to  a  port  of  the  ene- 
my— the  right  of  seizure  exists. 

"  The  then  solicitor-general  of  England  ( Sir  Roundell  Palmer) 
stated,  in  the  House  of  Commons,  on  the  29th  of  June  last,  referring 
to  the  cases  of  the  Dolphin  and  the  Pearl,  decided  by  the  district 
court  for  the  southern  district  of  Florida  (those  vessels  having  been 
captured  while  ostensibly  on  voyages  from  Liverpool  to  Xassau,  and 
it  having  been  held  by  tlie  court  that  the  intention  of  the  owners  of 
the  vessels  was  that  they  should  only  touch  at  Nassau,  and  tlien  go 
and  break  the  blockade  at  Charleston),  that '  if  the  owners  imagined 
that  the  mere  fact  of  the  vessel  touching  at  Nassau  when  on  such 
an  expedition  exonerated  her,  they  were  very  much  mistaken  : '  that 
the  principles  of  the  judgment  in  the  case  of  the  Dolphin  '  were  to 
be  found  in  every  volume  of  Lord  Stowell's  decisions  ;'  that  it  was 
well  known  to  everybody  that  there  was  a  large  contraband  trade 
between  England  and  America  by  way  of  Nassau  ;  that  it  was  absurd 
to  pretend  to  shut  their  eyes  to  it ;  and  that  the  trade  with  Nassau 
and  Matamoras  had  become  what  it  was  in  consequence  of  the  war. 

"  The  Foreign  Office  of  Great  Britain,  in  a  letter  to  the  owner  of 
the  Peterhoff^  on  the  3d  of  April  last,  announced  as  its  conclusion, 
after  havihg  communicated  with  the  law  officers  of  the  Crown,  that 
the  government  of  the  United  States  has  no  right  to  seize  a  Britisli 
vessel  io/^a^/?(7e  bound  from  a  British  port  to  another  neutral  port, 
unless  such  vessel  attempts  to  touch  at,  or  has  an  intermediate  or 
contingent  destination  to,  some  blockaded  port  or  place,  or  is  a  car- 
rier of  contraband  of  war  destined  for  the  enemy  of  the  United 
States ;  that  her  Majesty's  government,  however,  cannot,  without 
violating  the  rules  of  international  law,  claim  for  British  vessels 
navigating  between  Great  Britain  and  such  neutral  ports  any  gen- 
eral exemption  from  the  belligerent  right  of  visitation  by  the  cruisers 
of  the  United  States,  or  proceed  upon  any  general  assumption  that 
such  vessels  may  not  so  act  as  to  render  their  capture  lawful  and 
justifiable ;  that  nothing  is  more  common  than  for  those  who  con- 
template a  breach  of  blockade  or  the  carriage  of  contraband,  to  dis- 
guise their  purpose  by  a  simulated  destmation  and  by  deceptive 
papers;  and  that  it  has  already  happened,  in  many  cases,  that  Brit- 
ish vessels  have  been  seized  while  engaged  in  voyages  apparently  law- 
ful, and  have  been  afterwards  proved  in  the  prize  courts  to  have 
been  really  guilty  of  endeavoring  to  break  the  blockade,  or  of  carry- 
ing contraband  to  the  enemy  of  the  United  States. 

'•  The  cases  of  the  Stephen  Hart,  the  Springbok^  the  Peterhoff,  and 


856  BELLIGERENTS    AND   NEUTRALS.  [PART  IF. 

the  Gertrude  illustrate  a  course  of  trade  which  has  sprung  up  during 
the  present  war,  and  of  which  this  court  will  take  judicral  cognizance, 
as  it  appears  from  its  own  records  and  those  of  other  courts  of  the 
United  States  as  well  as  from  public  reputation.  Those  neutral 
ports  have  suddenly  been  raised  from  ports  of  comparatively  in- 
significant trade  to  marts  of  the  first  magnitude.  Nassau  and  Car- 
denas are  in  the  vicinity  of  the  blockaded  ports  of  the  enemy,  while 
Matamoras  is  in  Mexico,  upon  the  right  bank  of  the  Rio  Grande, 
directly  opposite  the  town  of  Brownsville,  in  Texas.  The  course  of 
trade,  in  respect  to  Xassau  and  Cardenas,  has  been  generally  to  clear 
neutral  vessels,  almost  alwaj^s  under  the  British  flag,  from  English 
ports  for  those  places,  and,  using  them  merely  as  ports  either  of  call 
or  of  trans-shipment,  to  either  resume  new  voyages  from  them  in  the 
same  vessels,  or  to  trans-ship  their  cargoes  to  fleet  steamers,  with 
which  to  run  the  blockade,  the  cargoes  being  composed,  in  almost 
all  cases,  more  or  less,  of  articles  contraband  of  war.  The  character 
and  course  of  this  trade,  and  its  sudden  rise,  are  very  properly  com- 
mented upon  in  a  despatch  from  the  Secretary  of  State  of  the  United 
States  to  Lord  Lyons,  of  the  12th  of  May,  18G3. 

"  The  broad  issue  upon  the  merits  in  this  case  is,  whether  the  ad- 
venture of  the  Stephen  Hart  was  the  honest  voyage  of  a  neutral 
vessel  from  one  neutral  port  to  another  neutral,  carrying  neutral 
goods  between  those  two  ports  only,  or  was  a  simulated  voyage,  the 
cargo  being  contraband  of  war,  and  being  really  destined  for  the  use 
of  the  enemy,  and  to  be  introduced  into  the  enemy's  country  by  a 
breach  of  blockade  by  the  Stephen  Hart,  or  by  trans-shipment  from 
her  to  another  vessel  at  Cardenas.  It  is  conceded  in  the  argument 
of  the  leading  counsel  for  the  claimants  that  if  the  property  was 
owned  by  the  enemy,  and  was  fraudulently  on  its  way  to  the  enemy 
as  neutral  property,  it  was  enemy's  property,  and  was  liable  to 
capture,  no  matter  whence  it  came  or  whither  it  was  bound ;  and 
that,  if  the  vessel  were  really  intending  and  endeavoring  to  run  the 
blockade,  the  property  was  liable  to  capture,  no  matter  to  whom  it 
belonged  or  what  was  its  character;  but  that  if  it  was  neutral  prop- 
erty, in  lawful  commerce,  it  was  safe  from  seizure. 

"  The  question  whether  or  not  the  property  laden  on  board  of  tlie 
Stephen  Hart  was  being  transported  in  the  business  of  lawful  com- 
merce, is  not  to  be  decided  by  merely  deciding  the  question  as  to 
whether  the  vessel  was  documented  for,  and  sailing  upon,  a  voyage 
,  from  London  to  Cardenas.     The  commerce  is  in  the  destination  and 
j  intended  use  of  the  property  laden  on  board  of  the  vessel,  and  not 
I  in  the  incidental,  ancillary,  and  temporary  voyage  of  the  vessel, 
'  which  may  be  but  one  of  many  carriers  through  which  the  property 


CHAP.  Til.]  THE    "STEPHEN   HART."  857 

is  to  reach  its  ti'ne  and  original  destination.  If  this  were  not  the 
rule  of  the  prize  law,  a  very  wide  door  would  be  opened  for  fraud 
and  evasion.  A  cargo  of  contraband  goods,  really  intended  for  the 
enemy,  might  be  carried  to  Cardenas  in  a  neutral  vessel  sailing  from 
England  with  papers  which,  upon  their  face,  import  merely  a  voyage 
of  the  vessel  to  Cardenas,  while  in  fact,  her  cargo,  Avhen  it  left  Eng- 
land, was  destined  by  its  owners  to  be  delivered  to  the  enemy  by 
being  trans-shipped  at  Cardenas  into  a  swifter  vessel.  And  such, 
indeed,  has  been  the  course  of  proceeding  in  many  cases  duiing  the 
present  war.  *  *  * 

"The  law  seeks  out  the  truth,  and  never,  in  any  of  its  branches, 
tolerates  any  such  fiction  as  that  under  which  it  is  sought  to 
shield  the  vessel  and  her  cargo  in  the  pi-esent  case.  If  the  guilty 
intention,  that  the  contraband  goods  should  reach  a  port  of  the 
enemy,  existed  when  such  goods  left  their  English  port,  that  guilty 
intention  cannot  be  obliterated  by  the  innocent  intention  of  stopping 
at  a  neutral  port  on  the  way.  If  there  be,  in  stopping  at  such  port, 
no  intention  of  trans-shipping  the  cargo,  and  if  it  is  to  proceed  to  the 
enemy's  country  in  the  same  vessel  in  wliicli  it  came  from  England, 
of  course  there  can  be  no  purpose  of  lawful  neutral  commerce  at  the 
neutral  port  by  the  sale  or  use  of  the  cargo  in  the  market  there ;  and 
the  sole  purpose  of  stopjiing  at  the  neutral  port  must  merely  be  to 
have  upon  the  papers  of  the  vessel  an  ostensible  neutral  terminus 
for  the  voyage. 

"  If,  on  the  other  hand,  the  object  of  stopping  at  the  neutral  port 
be  to  trans-ship  the  cargo  to  another  vessel  to  be  transported  to  a 
port  of  the  enemy,  while  the  vessel  in  which  it  was  brought  from 
England  does  not  proceed  to  the  port  of  the  enemy,  there  is  equally 
an  absence  of  all  lawful  neutral  commerce  at  the  neutral  port ;  and 
the  only  commerce  carried  on  in  the  case  is  that  of  the  transporta- 
tion of  the  contraband  cargo  from  the  English  port  to  the  port  of 
the  enemy,  as  was  intended  Avhen  it  left  the  English  port.  This 
court  holds  that,  in  all  such  cases,  the  transportation  or  voyage  of 
the  contraband  goods  is  to  be  considered  as  a  unit,  from  the  port  of 
lading  to  the  port  of  delivery  in  the  enemy's  country ;  that  if  any 
part  of  such  voyage  or  transportation  be  unlawful,  it  is  unlawful 
throughout ;  and  that  the  vessel  and  her  cargo  are  subject  to  capture ; 
as  well  before  arriving  at  the  first  neutral  port  at  which  she  touches 
after  her  departure  from  England,  as  on  the  voyage  or  transporta- 
tion by  sea  from  such  neutral  port  to  the  port  of  the  enemy.  *  *  * 

"  There  must,  therefore,  be  a  decree  condemning  both  vessel  and 
cargo."  ^ 

^  Ciises  involving  tiie  same  principles  are  The  Bermuda,  1865,  3  Wall.  614;  tlie 
Sprlmjhok,  ]8G(i,  5  Wall.  1  ;  the  PeUrhoff,  186G,  6  Wall.  28,  and  others  The 
judgment  of  Belts,  J.,  in  the  Stephen  Hart  was  subsequently  briefly  affirmed  by  the 


858  BELLIGERENTS    AND    NEUTRALS.  [PART  IL 


Section  47.  —  Visit  and  Search  :  Neutral  Property  on  the 

High   Seas. 


THE    ''MARIA." 
High  Court  of  Admiralty,   1799. 

(1  C.  Robinson,  340.) 

This  was  the  leading  case  of  a  fleet  of  Swedish  merchantmen,  .car- 
rying pitch,  tar,  liemp,  deals,  and  iron  to  several  ports  of  France, 
Portugal,  and  the  Mediterranean  ;  and  taken,  January,  1798,  sailing 
under  convoy  of  a  ship  of  war,  and  proceeded  against  for  resistance  of 
visitation  and  search  by  British  cruisers. 

Judgment.  —  Sir  W.  Scott  :  ^  — 

"  This  being  the  actual  state  of  facts,  it  is  proper  for  me  to  examine, 
2dly,  what  is  their  legal  state,  or,  in  other  words,  to  what  considera- 
tions they  are  justly  subject,  according  to  the  law  of  nations;  for 
which  purpose  I  state  a  few  principles  of  that  system  of  law  which  I 
take  to  be  incontrovertible. 

"1st,  That  the  right  of  visiting  and  searching  merchant  ships 
upon  the  high  seas,  whatever  be  the  ships,  whatever  be  the  cargoes, 
whatever  be  the  destinations,  is  an  incontestible  right  of  the  law- 
fully commissioned  cruisers  of  a  belligerent  nation.  I  say,  be  the 
ships,  the  cargoes,  and  the  destinations  what  they  may,  because,  till 
they  are  visited  and  searched,  it  does  not  appear  what  the  sliips,  or 
the  cargoes,  or  the  destinations  are ;  and  it  is  for  the  purpose  of 
ascertaining  these  points  that  the  necessity  of  this  right  of  visitation 
and  search  exists.  This  right  is  so  clear  in  principle,  that  no  man 
can  deny  it  who  admits  the  legality  of  maritime  capture ;  because  if 
you  are  not  at  liberty  to  ascertain  by  sufficient  inquiry  whether 
there  is  property  that  can  legally  be  captured,  it  is  impossible  to 
capture.  Even  those  who  contend  for  the  inadmissible  rule,  that 
free  s/iips  make  free  goods^  must  admit  the  exercise  of  this  right  at 
least  for  the  purpose  of  ascertaining  whether  tlie  ships  are  free  ships 
or  not.     The  right  is  equally  clear  in  practice  ;  for  practice  is  uni- 

Suprenie  Court,  1 865,  3  Wall.  559,  and  it  (Betts' judgment)  is  on  the  whole  the  clearest 
and  most  forcible  statement  of  the  principles  and  the  circumstances  involved  in  those 
cases,  to  be  found  in  the  reports.  Compare  L'Affaire  du  Doelwijk,  1896,  24  Journal 
de  Droit  Int.  Prive,  208-208.  The  doc^trine  of  continuous  voyages  is  generally  con- 
demned, 7  l{evue  de  Droit  Int.  20n-20();  14  id.  .328-331  ;  Hoiifils,  Droit  des  Gens, 
§§  1000-1007  (literature  in  note);  Fauchillc,  Du  Blocus  Maritime,  1882,  pp.  333-340; 
2  Kivior,  432-434.  — Ed. 

^  Only  so  much  of  the  judgment  is  given  as  applies  to  general  principles.  —  Ed. 


CHAP.   III.]  THE    "  MARIA."  859 

form  and  universal  upon  the  subject.  The  many  European  treaties 
wliich  refer  to  this  right,  refer  to  it  as  pre-existing,  and  merely  reg- 
ulate the  exercise  of  it.  All  writers  upon  the  law  of  nations  unani- 
mously acknowledge  it,  without  the  exception  even  of  Ilubner  himself, 
the  great  champion  of  neutral  privileges.  In  short,  no  man  in  the 
least  degree  conversant  in  subjects  of  this  kind  has  ever,  that  I  know 
of,  breathed  a  doubt  upon  it.  The  right  must  unquestionably  be 
exercised  with  as  little  of  personal  harshness  and  of  vexation  in  the 
mode  as  possible  ;  but  soften  it  as  much  as  you  can,  it  is  still  a  right 
of  force,  though  of  lawful  force — something  in  the  nature  of  civil 
process,  where  force  is  employed,  but  a  lawful  force,  which  cannot 
lawfully  be  resisted.  For  it  is  a  wild  conceit  that  wherever  force  is 
used,  it  may  be  forcibly  resisted ;  a  lawful  force  cannot  lawfully  be 
resisted.  The  only  case  where  it  can  be  so  in  matters  of  this  nature, 
is  in  the  state  of  war  and  conflict  between  two  countries,  where  one 
party  has  a  perfect  right  to  attack  by  force,  and  the  other  has  an 
equally  perfect  right  to  repel  by  force.  But  in  the  relative  situation 
of  two  countries  at  peace  with  each  other,  no  such  conflicting  rights 
can  possibly  coexist. 

"2dly,  That  the  authority  of  the  Sovereign  of  the  neutral  country 
being  interposed  in  any  manner  of  mere  force  cannot  legally  vary 
the  rights  of  a  lawfully-commissioned  belligerent  cruiser ;  I  say 
leyalhj,  because  what  may  be  given,  or  be  fit  to  be  given,  in  the  ad- 
ministration of  this  species  of  law,  to  considerations  of  comity  or  of 
national  policy,  are  views  of  the  matter  Avhich,  sitting  in  this  Court, 
I  have  no  right  to  entertain.  All  that  I  assert  is,  that  legally  it  can- 
not be  maintained,  that  if  a  Swedish  commissioned  cruiser,  during 
the  wars  of  his  own  country,  has  a  right  by  the  law  of  nations  to 
visit  and  examine  neutral  ships,  the  King  of  England,  being  neutral 
to  Sweden,  is  authorized  by  that  law  to  obstruct  the  exercise  of  that 
right  with  respect  to  the  merchant-ships  of  his  country.  I  add  this, 
that  I  cannot  but  think  that  if  he  obstructed  it  by  force,  it  would 
very  much  resemble  (with  all  due  reverence  be  it  spoken)  an  opposi- 
tion of  illegal  violence  to  legal  right.  Two  sovereigns  may  unques- 
tionably agree,  if  they  think  fit,  (as  in  some  late  instances  they  have 
agreed.)  by  special  covenant,  that  the  presence  of  one  of  their  armed 
ships  along  with  their  merchant-ships  shall  be  mutually  understood 
to  imply  that  nothing  is  to  be  found  in  that  convoy  of  merchant-ships 
inconsistent  with  amity  or  neutrality  ;  and  if  they  consent  to  accept 
this  pledge  no  third  party  has  a  right  to  quarrel  with  it  any  more  than 
with  any  other  pledge  which  they  may  agree  mutually  to  accept. 
But  surely  no  sovereign  can  legally  compel  the  acceptance  of  such  a 
security  by  mere  force.     The  only  security  known  to  the  law  of  na- 


860  BELLIGERENTS    AND   NEUTRALS.  [PART  II. 

tions  upon  this  subject,  independent  of  all  special  covenant,  is  the 
right  of  personal  visitation  and  search,  to  he  exercised  by  those  who 
have  the  interest  in  making  it.  I  ain  not  ignorant,  that  amongst 
the  loose  doctrines  which  modern  fancy,  under  the  various  denomi- 
nations of  philosophy  and  philanthropy,  and  I  know  not  what,  have 
thrown  upon  the  ^Yorld,  it  has  been  within  these  few  years  advanced, 
or  rather  insinuated,  that  it  might  possibly  be  well  if  such  a  security 
were  accepted.  Upon  such  unauthorized  speculations  it  is  not  nec- 
essary for  me  to  descant :  the  law  and  practice  of  nations  (I  include 
particularly  the  practice  of  Sweden  when  it  happens  to  be  belligerent) 
give  them  no  sort  of  countenance;  and  until  that  law  and  practice 
are  new-modelled  in  such  a  loay  as  may  surrender  the  known  and 
ancient  rights  of  some  nations  to  the  present  convenience  of  other 
nations,  (which  nations  may  perhaps  remember  to  forget  them,  when 
they  happen  to  be  themselves  belligerent,)  no  reverence  is  due  to 
them  ;  they  are  the  elements  of  that  system  which,  if  it  is  consistent, 
has  for  its  real  purpose  an  entire  abolition  of  capture  in  war — that 
is,  in  other  words,  to  change  the  nature  of  hostility,  as  it  has  ever 
existed  amongst  mankind,  and  to  introduce  a  state  of  things  not  yet 
seen  in  tlie  world,  that  of  a  military  war  and  a  connnercial  peace. 
If  it  were  fit  that  such  a  state  should  be  introduced,  it  is  at  least 
necessary  that  it  should  be  introduced  in  an  avowed  and  intelligible 
manner,  and  not  in  a  way  which,  professing  gravely  to  adhere  to 
that  system  which  has  for  centuries  prevailed  among  civilized  states, 
and  urging  at  the  same  time  a  pretension  utterly  inconsistent  with 
all  its  known  principles,  delivers  over  the  whole  matter  at  once  to 
eternal  controversy  and  conflict,  at  the  expence  of  the  constant  hazard 
of  the  harmony  of  states,  and  of  the  lives  and  safeties  of  innocent 
individuals. 

"  3dly,  That  the  penalty  for  the  violent  contravention  of  this  right 
is  the  confiscation  of  the  property  so  withheld  from  visitation  and 
search.  For  the  proof  of  this  I  need  only  refer  to  Vattel,  one  of  the 
most  correct  and  certainly  not  the  least  indulgent  of  modern  profes- 
sors of  public  law."       See  Book  III.,  c.  vii.,  sect.  Il4.i 

^  For  decisions  on  Vit-it  and  Searcli  in  time  of  peace,  see  Le  Louis,  1817,  2  Dods. 
210,  antf,  .352;  R.  v.  Serva  ntitl oihprs,\8io,  1  Den.  Cr.  Cas.  104,  with  cases  there  cited; 
'J'he  Antelope,  1825,  10  Wheat.  110.  See  also  tiie  note  to  The  Maria  in  Tudor,  Mer- 
cantile Cases,  3d  ed.,  914-920. —  Ed. 


CHAP.  III.]  THE   SCHOONER    "NANCY."  861 

THE   SCHOONER   "NANCY." 
United  States  Court  of  Claims,  1892, 

(27  Court  of  Claims,  99.) 

Davis,  J.,  delivered  the  opinion  of  the  court:  ^  — 

The  Nancij,  sailing  froni  Baltimore  to  Port  a  Paix  in  the  year  1797, 
was  in  June  captured  by  an  English  vessel  of  war,  taken  into  St.  Nich- 
olas Mole  and  there  detained.  She  sailed  then  (under  constraint)  for 
Jeremie,  and  there  took  in  a  cargo  of  coffee.  Thereafter  the  schooner 
left  Jeremie,  under  convoy  bound  back  to  St.  Nicholas  Mole,  with  in- 
tention there  to  join  a  convoy  for  the  United  States,  but  before  arrival 
at  the  Mole,  and  while  under  convoy,  she  was  captured  by  the  French, 
August  2d  ;  in  due  course  she  was  condemned  as  prize,  and,  with  her 
cargo,  was  lost  to  the  owners. 

The  substantial  ground  for  condemnation  is  found  in  the  fact  that 
when  the  Nancy  was  captured  she  was  actually  under  convoy.  The 
nature  or  nationality  of  the  convoy  is  not  shown,  but  the  history  of  the 
time  forces  the  presumption  that  it  was  an  English  armed  vessel,  either 
public,  or,  what  is  more  likely,  private.  Jeremie  was  in  possession  of 
the  English,  so  was  the  Mole.  The  Nancij  Avas  forced  to  take  an 
English  privateer  as  convoy  from  tlie  INIole  to  Jeremie,  and  in  the 
latter  port  it  is  more  than  improbable  that  she  would  have  found  any 
armed  vessel  to  escort  her  back  to  the  INIole  which  did  not  fly  the 
flag  of  Great  Britain.  The  record  being  silent  upon  this  point,  we  are 
forced  to  assume  that  when  captured  she  was  under  English  protection. 

One  question  of  law  alone,  then,  is  presented  for  our  decision : 
AVas  the  condemnation  legal  of  a  neutral  vessel  laden  with  neutral 
cargo  captured  when  under  enemy  convoy  ?  There  is,  so  far  as  we 
have  been  able  to  discover,  no  judicial  decision  in  the  United  States 
upon  the  question  presented  by  this  record  and  which  we  now  must 
consider  and  determine. 

A  case  much  cited  in  discussions  of  the  right  of  search  is  the 
Nereide,  9^Cranch,  389,  but  there  the  court  decide  only  that  neutral 
property  is  not  tainted  when  laden  upon  an  armed  belligerent ;  and  the 
principle  governing  such  a  case  is  thus  stated  by  Chief  Justice  Marshall 
(p.  432). 

"  The  general  rule,  the  incontestable  principle,  is  that  a  neutral  has 
a  right  to  employ  a  belligerent  carrier.  He  exposes  himself  thereby 
to  capture  and  detention,  but  not  to  condemnation." 

^     '  The  statement  of  facts  is  omitted  as  they  sufficiently  appear  in  the  judgment.  — Ed. 


862  BELLIGERENTS    AND    NEUTRALS.  [PART  11, 

In  the  later  case  of  The  Atalanta,  3  "Wheat,  p.  409,  Mr.  Justice 
Johnson,  speaking  of  the  distinction  observed  between  neutral  goods 
laden  upon  belligerent  vessels  and  neutral  vessels  under  convoy,  made 
the  following  suggestions  : 
1  "  A  convoy  is  an  association  for  a  hostile  object.  In  undertaking 
it,  a  nation  spreads  over  the  merchant  vessel  an  immunity  from  search 
which  belongs  only  to  a  national  ship;  and  hy  joining  a  convoy  every 
individual  ship  puts  off  her  pacific  character  and  undertakes  for  the 
discharge  of  duties  which  belong  only  to  the  military  marine  and  adds 
to  the  numerical,  if  not  the  real,  strength  of  the  convoy.  If,  then,  the 
association  be  voluntary,  the  neutral,  in  suffering  the  fate  of  the 
Avliole,  has  only  to  regret  his  own  folly  in  wedding  his  fortune  to 
theirs  ;  or,  if  involved  in  the  aggression  or  the  opposition  of  the  con- 
voying vessels,  he  shares  the  fate  which  the  leader  of  his  own  choice 
either  was  or  would  have  been  made  liable  to  in  case  of  capture." 

And  further  (p.  424)  : 
1       "  Resistance,  either  real  or  constructive,  by  a  neutral  carrier  is,  with 
t  a  view  to  the  law  of  nations,  unlawful." 

The  Atalanta,  like  the  Nere'uh;,  was  an  armed  British  vessel,  carry- 
ing neutral  cargo.  No  question  as  to  the  effect  of  belligerent  convoy 
was  involved  in  either  case,  and  Mr.  Justice  Johnson's  remarks  can 
only  be  regarded  as  illustrative.  They,  however,  gain  great  force 
from  the  fact  that  in  the  case  of  the  Nereide  Mr.  Justice  Story  (who 
dissented)  wrote  an  opinion  upon  neutral  duties  which  has  always 
attracted  general  attention,  and  which  is  to-day  found  fully  cited  in 
the  text-books,  both  those  by  our  own  authors  and  those  written  by 
citizens  or  subjects  of  other  nations  ;  in  fact,  one  accepted  authority 
has  fallen  into  the  error  of  ascribing  Mr.  Justice  Story's  views  to  the 
court  of  which  he  was  a  member. 

jMr.  Justice  Story  said  :  — 

"It  has,  however,  been  supposed  by  the  counsel  of  tlie  claimants 
tliat  a  distinction  exists  between  taking  the  protection  of  a  neutral 
and  of  a  belligerent  convoy  that  in  the  former  case  all  armament  for 
resistance  is  unlawful,  but  in  the  latter  case  it  is  not  only  lawful,  but 
in  the  higliest  degree  commendable.  That  although  an  unlawful  act, 
as  resistance  by  a  neutral  convoy,  may  justly  affect  the  whole  asso- 
ciated ships,  yet  it  is  otherwise  of  a  lawful  act,  as  resistance  of  a 
belligerent  ship  ;  for  no  forfeiture  can  reasonably  grow  out  of  such  an 
act,  which  is  strictly  justifiable. 

"The  fallacy  of  the  argument  consists  in  assuming  the  very  ground 

in  controversy  and  confounding  things  in  their  own  nature  entirely 

>^  distinct.     An  act  perfectly  lawful  in  a  belligerent  may  be  flagrantly 

i  wrongful  in  a  neutral.     A  belligerent  may  lawfully  resist  search;  a 


CHAP,  lir.]  THE   SCHOONER   "  NANCY."  8G3 

neutral  is  bound  to  submit  to  it.  A  belligerent  may  carry  on  his 
comraerce  by  force  ;  a  neutral  cannot.  A  belligerent  may  capture  the 
property  of  his  enemy  on  the  ocean  ;  a  neutral  has  no  authority  what- 
ever to  make  captures.  The  same  act,  therefore,  that  with  reference 
to  the  acts  and  duties  of  the  one  may  be  tortious,  may,  with  reference 
to  the  rights  and  duties  of  the  other,  be  perfectly  justifiable.  The  act, 
then,  as  to  its  character,  is  to  be  judged  not  merely  by  that  of  the 
parties  through  whose  immediate  instrumentality  it  is  done,  but  also 
by  the  character  of  those  who,  having  co-operated  in,  assented  to,  or 
sought  protection  from  it,  would  yet  withdraw  themselves  from  the 
penalties  of  the  act.  It  is  analogous  to  the  case  at  common  law 
Avhere  an  act,  justifiable  in  one  party,  does  not,  from  that  fact  alone, 
shelter  his  coadjutor.  They  must  stand  or  fall  upon  their  own 
merits.  It  would  be  strange  indeed  if,  because  a  belligerent  may  kill 
his  enemy,  a  neutral  may  aid  in  the  act ;  or  because  a  belligerent 
may  resist  search,  a  neutral  may  co-operate  to  make  it  effectual.  It  is 
therefore  an  assumption  utterly  inadmissible  that  a  neutral  can  avail 
himself  of  the  lawful  act  of  an  enemy  to  protect  himself  in  an  invasion 
of  a  clear  belligerent  right. 

'•  And  what  reason  can  there  be  for  the  distinction  contended  for  ? 
Why  is  the  resistance  of  the  convoy  deemed  the  resistance  of  the 
whole  neutral  associated  ships,  let  them  belong  to  whom  they  may  ? 
It  is  not  that  there  is  a  direct  and  immediate  co-operation  in  the  resist- 
ance, because  the  case  supposes  the  contrary.  It  is  not  that  the 
resistance  of  the  convoy  of  the  sovereign  is  deemed  an  act  to  which 
all  his  own  subjects  consent,  because  the  ships  of  foreign  subjects 
would  then  be  exempted.  It  is  because  there  is  a  constructive  resist- 
ance resulting  in  law  from  the  common  association  and  voluntary  pro- 
tection against  search  made  under  a  full  knowledge  of  the  intentions 
of  the  convoy.  Then  the  principle  applies  as  well  to  a  belligerent  as 
to  a  neutral  convoy;  for  it  is  manifest  that  the  belligerent  will  at  all 
events  resist  search  ;  and  it  is  quite  as  manifest  that  the  neutral  seeks 
belligerent  protection  with  an  intent  to  evade  it.  Is  it  that  an  evasion 
of  search,  by  the  employment,  protection,  or  tei-ror  of  force,  is  consis- 
tent with  neutral  duties?  Then,  a  fortiori,  the  principle  applies  to  a 
case  of  belligerent  convoy,  for  the  resistance  must  be  presumed  to  be 
more  obstinate  and  the  search  mora  perilous. 

•'  There  can  be  but  little  doubt  that  it  is  upon  the  latter  principle 
that  the  penalty  of  confiscation  is  applied  to  neutrals.  The  law  pro- 
ceeds yet  further,  and  deems  the  sailing  under  convoy  as  an  act  per  se 
inconsistent  with  neutrality,  as  a  premeditated  attempt  to  oppose,  if 
practicable,  the  right  of  search,  and  tlierefore  attributes  to  such  pre- 
liminary act  the  full  effect  of  actual  resistance.     In  this  respect  it 


864  BELLIGERENTS    AND    NEUTRALS.  [PART  11. 

applies  a  rule  analogous  to  that  in  the  case  of  blockade,  where  the  act 
of  sailing  with  an  intent  to  break  a  blockade  is  deemed  a  sufficient 
breach  to  authorize  confiscation.  And  Sir  William  Scott  manifestly 
recognizes  the  correctness  of  this  doctrine  in  the  Maria,  although  the 
circumstances  of  that  case  did  not  require  its  rigorous  aj^plication. 

"  Indeed,  in  relation  to  a  neutral  convoy,  the  evidence  of  an  intent 
to  resist,  as  well  as  constructive  resistance,  is  far  more  equivocal  than 
in  case  of  a  belligerent  convoy.  In  the  latter  case  it  is  necessarily 
known  to  the  convoyed  ships  that  the  belligerent  is  bound  to  resist 
and  will  resist  until  overcome  by  superior  force.  It  is  impossible, 
therefore,  to  join  such  convoy  without  an  intention  to  receive  the 
protection  of  belligerent  force  in  such  manner  and  under  such  cir- 
cumstances as  the  belligerent  may  choose  to  apply  it.  It  is  an  adop- 
tion of  his  acts  and  an  assistance  of  his  interests  during  the  assumed 
voyage.  To  render  the  convoy  an  effectual  protection  it  is  necessary 
to  interchange  signals  and  instructions,  to  communicate  information, 
and  to  watch  the  approach  of  every  enemy.  The  neutral  solicitously 
aids  and  co-operates  in  all  these  important  transactions,  and  thus  far 
manifestly  sides  with  the  belligerent  and  performs,  as  to  him,  a  meri- 
torious service,  —  a  service  as  little  reconcilable  with  neutral  duties  as 
the  agency  of  a  spy  or  the  fraud  of  the  bearer  of  hostile  despatches. 
In  respect  to  a  neutral  convoy,  the  inference  of  constructive  co-operation 
and  hostility  is  far  less  certain  and  direct.  To  condemn  in  such  case 
is  pushing  the  doctrine  to  a  great  extent,  since  it  is  acting  upon  the 
presumption,  which  is  not  permitted  to  be  contradicted,  that  all  the 
convoyed  ships  distinctly  understood  and  adopted  the  objects  of 
the  convoy,  and  intimately  blended  their  own  interests  with  hostile 
resistance."     Story,  J.,  in  The  Nereide,  9  Cranch,  380. 

When  Mr.  Justice  Johnson  delivered  the  later  opinion  of  the  court 
in  the  case  of  the  Atalanta,  he  had  undoubtedly  in  mind  the  dissenting 
opinion  delivered  three  years  before  by  his  colleague  ;  his  remarks  as  to 
convoy,  therefore,  were  undoubtedly  carefully  weighed  and  considered, 
and  should  be  given  a  force  not  usually  accorded  to  illustrations  or 
statements  merely  argumentative  in  judicial  decision.  We  infer  that 
liad  the  question  of  the  effect  upon  a  neutral  of  voluntary  submission 
to  a  belligerent  convoy  been  before  them  for  adjudication  at  that  time, 
the  Supreme  Court  would  have  followed  the  reasoning  of  Mr.  Justice 
Story. 

The  discussions  between  the  United  States  and  Denmark  early  in 
this  century  are  often  alluded  to  in  connection  with  questions  similar 
to  that  presented  in  the  case  at  bar,  but  it  cannot  be  effectively  cited 
as  bearing  in  any  important  manner  upon  the  single  issue  now 
presented. 


CHAP.  III.]  THE    SCHOONER   "  NANCY."  8G5 

The  treaty  of  1830  with  Denmark  provided  for  the  payment  of  the 
claims,  but  it  cannot  be  regarded  as  a  precedent,  for  it  contained  a 
declaration  that  the  convention,  having  no  other  object  than  to  termi- 
nate all  the  claims,  "can  never  hereafter  be  invoked  by  one  party  or 
the  other  as  a  precedent  or  rule  for  the  future."  Dana's  Wheaton, 
Part  LV,  section  537. 

Nor  was  the  exaet  point  we  are  now  considering  presented  in  the 
Danish  case.  The  question  there  discussed  is  thus  ])resented  by  IMr. 
Wheaton,  who  conducted  the  negotiations  and  signed  the  treaty: 

''The  principle  laid  down  in  the  ordinance  as  interpreted  by  the 
Danish  tribunals  was  that  the  fact  of  having  navigated  under  enemies 
convoy  is,  per  se,  a  justifiable  cause,  not  of  capture  merely,  but  of 
condemnation,  in  the  courts  of  the  other  belligerent;  and  that,  without 
inquiring  into  the  proofs  of  proprietary  interest  or  the  circumstances 
and  motives  under  which  the  captured  vessel  had  joined  the  convoy,  or 
into  the  legality  of  the  voyage,  or  the  innocence  of  her  conduct  in 
other  respects."     Dana's  Wheaton,  Part  LV.  section  531. 

In  Denmark  the  vessels  were  condemned  because  at  a  previous  time 
they  had  been  under  enemy  convoy.  When  seized  they  were  without 
convoy,  whereas  the  Nancy  was  actually  under  convoy  when  seized. 

If  we  omit  consideration  of  points  presented  by  a  state  of  real  or 
quasi  armed  neutrality,  which  do  not  affect  our  present  purpose,  we 
shall  find  in  the  history  of  the  Department  of  State  any  other  prece- 
dent than  the  Danish  case  to  be  invoked  in  aid  of  a  solution  of  the 
problem  now  presented  to  us. 

Assuming,  therefore,  that  the  Supreme  Court  has  indicated  through 
two  learned  justices  that  in  their  opinion  voluntary  submission  by  the 
neutral  to  the  enemy  convoy  taints  the  vessel,  we  turn  to  the  text- 
writers. 

Mr.  Wheaton  gives  but  little  aid,  as  his  interesting  discussion  of  the 
convoy  relates  to  the  Danish  negotiations  and  to  the  position  then 
taken  by  him,  not  as  an  unprejudiced  text-writer,  but  as  the  diplomatic 
agent  of  the  government,  acting  under  instructions  from  his  superior 
officers.  His  annotator,  ^Mr.  Dana,  is,  however,  most  explicit  when  he 
treats  of  the  very  question  now  before  us. 

Speaking  of  neutral  under  belligerent  convoy,  Mr.  Dana  says  : 

"  It  is  not  enough  for  the  ostensible  neutral  to  say,  or  even  to  prove, 
that  he  is  not  justly  liable  to  capture,  for  the  law  of  nations  requires 
him  to  afford  the  belligerent  a  certain  mode  of  satisfying  himself  on 
that  point  by  visit  and  search  ;  and  if  he  refuses,  resists,  or  fraudently 
evades  the  proper  search,  he  is,  for  that  cause,  liable  to  capture.  The 
only  question  ever  raised  has  been,  whether  the  act  of  being  found 

under   belligerent    convoy    affords    a   conclusive    presumption   of    an 

55 


866  BELLIGERENTS   AND   NEUTRALS.  [PART  II. 

intent  to  deprive  the  other  belligerent  of  the  right  of  search  or  is 
only  a  fact,  having  its  weight,  but  open  to  explanation."  Dana's 
Wheaton,    Part  LV.  ch.  III.  final  foot-note. 

Chancellor  Kent  is  also  direct  in  his  statement : 
\      "  The  very  act  of  sailing  under  the  protection  of  a  belligerent  or 
'  neutral  convoy,  for  the  purpose  of  resisting  search,  is  a  violation  of 
neutrality."     1  Kent,  p.  155. 

The  principle  upon  which  the  Danish  case  was  decided 

'^  Seems  (according  to  Dr.  Woolsey)  to  run  between  making  use  of 
the  enemy's  flag  and  putting  one's  goods  on  board  an  armed  enemy's 
vessel.  The  former  is  done  to  enjoy  certain  privileges,  offered  by  a 
party  of  war,  which  would  not  otherwise  be  secured.  Tlie  latter 
may  be  done  without  complicity  with  the  intentions  or  conduct  of  the 
captain  of  the  armed  ship,  or  may  be  done  with  the  design  of  having 
two  strings  to  one's  bow  ;  of  availing  one's  self  of  force  or  not,  as  cir- 
cumstances shall  require.  Upon  the  whole,  the  intention  to  screen 
the  vessels  behind  the  enemy's  guns  is  so  obvious,  that  the  act  must 
be  pronounced  to  be  a  decided  departure  from  the  line  of  neutrality, 
and  one  which  may  justly  entail  confiscation  on  the  offending  party." 
Sec.  193. 

Yattel  (bk.  III.  ch.  7,  sec.  114),  says  : 

"  Aujourd'hui  un  vaisseau  neutre,  qui  refuseroit  de  souffrir  la  visite, 
se  feroit  condamner  par  cela  seul,  comme  etant  de  bonne  prise." 

Yalin,  commenting  upon  the  French  ordinance  of  1681,  which  pro- 
vides that  every  vessel  shall  be  good  prize  in  case  of  resistance  and 
combat,  states  that  resistance  alone  without  combat  justifies  condem- 
nation,    Valin  sur  I'ordonnance  de  IflSl,  sec.  12,  page  81. 

In  the  Maria,  Sir  William  Scott  said  : 

"I  stand  with  confidence  upon  all  fair  ^'•rinciples  of  reason — upon 
the  distinct  authority  of  Yattel — upon  the  institutes  of  other  great 
maritime  countries,  as  well  as  those  of  our  own  country  —  when  I 
venture  to  lay  it  down  tlint,  b}^  tlie  law  of  nations  as  now  understood, 
a  deliberate  and  continued  resistance  to  search,  on  the  part  of  a 
neutral  vessel  to  a  lawful  cruiser,  is  followed  by  the  legal  consequence 
of  confiscation."     1  C.  Rob.  p.  340. 

In  the  case  of  Tlie  CatJiarlna  EJhaheth,  5  C.  Eob.  p.  232,  the  same 

(eminent   judge    held  that  resistance    by  an    enemy    master  will    not 
affect  his  neutral  cargo — a  decision  quite  in  harmony  with  that  of 
the  Supreme  Court  in  the  Nereide  —  and  he  observed  : 
j.      "If  a  neutral  master  attempts  a  rescue,  he  violates  a  duty  which  is 
j  imposed  upon  him  by  the  laws  of  nations,  to  submit  to  come  in  for 
'  inquiry  as  to  tlie  property  of  the  ship  or  cargo;  and  if  he  violates  that 
obligation  by  a  recurrence  to  force,  the  consequences  will  undoubtedly 


CHAP.  III.]  THE    SCHOONER    "  NANCY."  867 

reach  the  property  of  his  owner;  and  it  wouhl,  I  tliiuk,  extend  to  the 
confiscation  of  tlie  whole  cargo  intrusted  to  his  care  and  thus  fraud- 
ulently attempted  to  be  withdrawn  from  the  rights  of  war.  With  an 
enemy  master  the  case  is  very  different."  See  also  The,  Dis^nitdi, 
3  C.  Rob.  p.  278. 

Dr.  Phillimore,  commenting  upon  Sir  William  Scott's  opinion  in 
the  Maria,  that  "  it  is  wild  conceit  that  wherever  force  is  used  it  may 
be  lawfully  resisted,"  concludes  thus : 

"  It  is  upon  these  principles  that  international  law  universally,  by 
its  accredited  voice,  inflicts  the  penalty  of  confiscation  upon  the 
neutral  merchantman  or  private  vessel  which  resists  the  belligerent's 
right  of  search."     Vol.  III.     CCCXXXVI. 

Proceeding  then  to  consider  the  case  of  a  private  vessel  under  convoy, 
he  uses  and  apparently  adopts  the.  language  of  Sir  William  Scott  in 
wliat  the  author  describes  as  "  one  of  his  most  careful  and  best 
reasoned  judgments,"  that  given  in  the  case  of  the  Maria,  a  vessel 
sailing  under  armed  convoy  for  the  purpose  of  resisting  visitation  and 
search. 

In  his  treatise  on  international  law  Mr.  Hall,  citing  Mr.  Justice 
Story's  opinion  in  the  Nereide,  concludes  that  "on  this  point,  as 
usually,  English  and  American  writers  and  judges  are  fully  in  accord." 
Part  IV.  ch.  X.  p.  679. 

Further  (p.  275),  he  holds  that,  if  the  belligerent  be  within  his 
rights  when  visiting,  "the  neutral  master  is  guilty  of  an  unprovoked 
aggression  in  using  force  to  prevent  the  visit  from  being  accomplished, 
and  the  belligerent  may  consequently  treat  him  as  an  enemy  and  con- 
fiscate his  •ship." 

In  the  unreported  case  of  the  Sampson,  decided  by  the  lords  of 
appeal,  alluded  to  in  the  Maria  ?i,\\di  the  Nereide  and  cited  by  Mr.  Dana, 
it  was  decided  that  the  bare  fact  of  being  found  under  enemy  convoy 
afforded  a  conclusive  presumption  of  intent  to  deprive  the  other  bel- 
ligerent of  the  right  of  search. 

In  Manning's  Commentaries  on  the  Law  of  Nations  (p.  360),  we 
find  his   view  thus   stated : 

"As  a  general  principle  I  think  that  the  sailing  under  the  convoy 
of  a  belligerent  must  be  regarded  as  a  withdrawal  from  the  search  of 
the  other  belligerent,  as  a  resistance  to  his  rights,  and  as  entailing 
confiscation  as  a  consequence  of  such  attempted  evasion." 

Ortolan,  speaking  of  the  Danish  case,  excuses  the  acts  of  the 
American  ships  upon  the  ground  of  an  innocent  ruse,  excusable  from 
the  desire  they  had  of  escaping  from  the  rigor  of  the  French  decrees, 
but  he  says  that,  apart  from  the  special  circumstances  of  this  case  — 

"  It  cannot  be  said  that  the  fact  of  a  neutral  vessel  navigating  under 


868  BELLIGERENTS    AND   NEUTRALS.  [PART  IL 

the  convoy  of  a  belligerent  is  not  an  irregular  and  even  illegal  act. 
Such  a  convoy  cannot,  at  all  events,  exempt  from  visit."  Ortolan, 
Diplomatic  de  la  Mer,  tome  II.  p.  245. 

Hautefeuille  takes  a  different  view,  viz.,  that  the  nentral  who  places 
himself  under  belligerent  convoy  does  not  fail  in  his  duty  or  violate 
his  neutral  character;  he  exposes  himself  to  be  taken  with  the  bel- 
ligerent convo}^,  but  is  not  subject  to  confiscation;  to  go  free  it  should 
be  sufficient  to  establish  his  nationality  and  the  innocence  of  his  trade. 
Droits  des  nations  neutres,  tome  III.  pp.  162,  164.  This  author,  how- 
ever, treats  the  subject  rather  as  a  philosopher  than  as  a  jurist,  and 
does  not  assume  that  the  law  as  stated  by  him  was  the  laAv  actually  in 
existence,  but  rather  that  which  he  thought  should  exist  and  be 
enforced. 

The  authorities  agree  that  visit  and  search  in  time  of  war  are 
belligerent  rights  of  self-preservation  to  which  the  neutral  must  sub- 
mit ;  that  actual  resistance  by  the  neutral  to  the  exercise  of  this  right 
authorizes  condemnation  ;  that  voluntary  submission  to  belligerent  con- 
voy is  constructive  resistance  which  authorizes  seizure.  So  far  the 
authorities  are  united  ;  but  they  are  not  agreed  as  to  the  result  of  this 
constructive  resistance,  whether  it  raises  a  conclusive  presumption 
authorizing  confiscation  of  the  neutral  or  presents  only  a  suspicious 
circumstance  capable  of  explanation.  The  weight  of  authority,  how- 
ever, is  adverse  to  this  claimant,  and  we  accordingly  hold  that,  in  the 
year  179S,  a  neutral  vessel,  if  captured  when  actually  under  the  pro- 
tection of  an  enemy's  vessel  of  war,  is  for  that  reason  alone  good  prize. 

It  has  been  urged  that  a  statute  of  the  United  States  authorized 
resistance  by  our  merchantmen  to  French  visitation  and* search,  to 
wliicdi  there  is  the  simple  answer  that  no  single  state  can  change 
the  law  of  nations  by  its  municipal  regulations. 

We  do  not  forget  the  great  dangers  incurred  b\^  neutrals  during  the 
wars  of  the  last  century,  arising  somewhat  from  the  illegal  acts  of 
belligerent  armed  public  vessels,  but  especially  from  privateers,  and 
the  inexcusable  course  of  some  of  the  prize  tribunals.  We  have 
already  commented  upon  this  condition  in  former  opinions,  and  we 
are  agreed  that  acts  of  neutral  vessels  of  commerce  under  the  then 
existing  dangers  should  be  judged  with  leniency;  but  we  find  that 
under  the  law  of  nations,  as  declared  and  observed  in  1798,  the 
United  States  could  not  have  prosecuted  to  a  successful  issue  the 
case  of  the  Nancy  after  it  had  been  shown  that,  when  taken,  she  was 
voluntarily  under  the  protection  of  an  English  armed  vessel. 

The  case  will  V)e  reported  to  Congress  witli  the  conclusion  of  law 
that  the  claimant  is  not  entitled  to  indemnity. 


CHAP.  Ill,]  THE    BRIG    "SEA    NYMPH."  869 

THE   BEIG   ''SEA   XYMPH." 
United  States  Court  of  Claims,   1901. 

(3G  Court  of  Claims,  369.) 

"Weldox,  J.,  delivered  the  oijinion  of  the  court :  ^  — 

The  facts  shows  that  the  brig  Sea  Nyniph^  Hastie,  master,  sailed  on 
or  about  the  17th  of  April,  1797,  from  the  port  of  Jeremie,  ou  a  com- 
mercial voyage,  bound  for  Cape  Nicholas  Mole,  whence  she  sailed 
^fay  14,  1797,  bound  for  Philadelphia,  laden  with  a  cargo  of  sugar  and 
coffee.  The  Sea  Xymph  sailed  from  the  Mole  under  a  British  ship  as 
a  convo}',  and  while  pursuing  her  voyage  was  seized  on  the  high  seas 
on  the  next  day,  May  15,  1797,  by  the  French  privateer  Le  General 
Toussainf,  and  carried  into  the  port  of  St.  lago  de  Cuba,  and  both 
vessel  and  cargo  were  condemned  by  the  French  prize  court,  sitting  at 
Cape  Francois. 

The  grounds  of  condemnation  as  set  forth  in  the  decree  are  as 
follows  : 

"  Considering  the  papers  above  mentioned  establish  and  prove  that 
the  said  brig  has  been  captured,  loaded  with  produce  taken  on  board  at 
Jeremie;  considering  that  Jeremie  is  one  of  the  ports  of  the  colony  in 
rebellion  against  the  laws  of  the  Republic,  under  the  protection  of  the 
British  Government,  and  declared  in  a  state  of  permanent  siege  by  the 
decree  of  the  commission  of  the  6th  Nivose  last." 

Upon  the  foregoing  the  court  decrees  the  condemnation  of  the  vessel 
and  cargo  as  good  prize. 

It  is  contended  on  the  part  of  the  defendants  that  the  condemnation 
of  said  vessel  by  the  French  court  was  lawful  and  proper,  notwith- 
standing that  it  is  not  alleged  as  a  ground  in  the  condemnation  that  the 
ship  at  the  time  of  seizure  was  sailing  under  a  belligerent  vessel  as  a 
convoy. 

It  has  been  repeatedly  held  by  this  court  that  if  from  the  evidence 
in  the  case  a  sufficient  ground  of  condemnation  appears,  the  fact  that 
such  ground  is  not  mentioned  in  the  decree  of  condemnation  would  not 
have  prevented  France,  and  will  not  now  prevent  the  United  States, 
from  insisting  that  although  the  decree  is  deficient  in  the  allegations 
of  good  grounds  for  condemnation,  yet  if  the  evidence  shows  other 
grounds  upon  which  the  condemnation  might  have  been  made,  there 
was  no  liability  against  France,  and  hence  there  can  be  none  against 
the  United  States. 

^  Statement  of  the  original  report  is  omitted.  —  Ed. 


870  BELLIGERENTS   AND   NEUTRALS.  [PART  IL 

In  the  case  of  the  ship  Joanna,  Boggs,  master  (24  C.  Cls.  E.  198), 
it  is  said  : 

"  Before  considering  this  subject  we  may  say  that  we  are  of  the 
opinion  that  should  a  good  reason  for  the  condemnation  of  a  vessel 
appear  in  the  record  before  the  prize  court,  although  that  reason  may 
not  have  been  explicitly  and  specificially  alleged  by  that  tribunal  as 
the  reason  for  the  result  reached  by  them,  we  shall  still  uphold  the 
decision  of  the  tribunal." 

In  the  case  of  Stewart,  administrator  (schooner  Nancy),  against  the 
United  States  (27  C.  Cls.  R.  90),  the  question  of  the  legal  effect  of 
being  under  convoy  at  the  time  of  seizure  was  considered  and  decided 
by  this  court.  It  is  said  in  that  case  that  "  the  substantial  ground  of 
condemnation  is  found  in  the  fact  that  when  the  Nancij  was  captured 
she  was  actually  under  convoy.  The  nature  or  the  nationality  of  the 
convoy  is  not  shown,  but  the  history  of  the  time  forces  the  presump- 
tion that  it  was  an  English  armed  vessel,  either  public  or,  what  is 
more  likely,  private.  Jeremie  was  in  the  possession  of  the  English,  and 
so  was  the  Mole."  It  is  not  shown  in  this  case  as  to  the  nationality 
or  character  of  the  convoy,  but  judging  from  the  circumstance  of  the 
seizure  and  the  analogy  to  the  facts  in  the  case  of  the  Nancy,  the  pre- 
sumption arises  that  the  convoy  was  either  an  English  armed  vessel  or 
an  English  privateer. 

It  is  said  in  substance  in  that  case  that  there  is  no  judicial  decision 
in  the  United  States  upon  the  question  presented  by  the  record,  and 
that  this  court  must  now  in  the  first  instance,  in  the  history  of  this 
litigation,  consider  and  determine  the  legal  effect  of  sailing  under  a 
convoy  at  the  time  of  seizure.  In  the  case  of  the  Nancy,  the  case  of 
the  Nereide  (9  Cranch,  380)  is  cited,  and  quotation  is  made  from  the 
opinion  of  Cliief  Justice  Marshall,  page  432,  in  which  it  is  said,  "  The 
general  rule  and  incontestable  principle  is  that  a  neuti-al  has  a  right  to 
employ  a  belligerent  carrier,  who  exposes  himself  to  capture  and 
detention  but  not  to  condemnation."' 

In  the  case  of  the  Atalaitta  (3  Wheaton,  p.  409),  Mr.  Justice  Jolin- 
son,  distinguisliing  between  the  case  of  neutral  goods  laden  upon  bel- 
ligerent vessels  and  neutral  vessels  under  convoy,  said : 

"A  convoy  is  an  association  for  a  hostile  object.  In  undertaking  it, 
a  nation  spreads  over  the  merchant  vessel  an  immunity  from  search 
wliich  belongs  only  to  a  national  ship ;  and  by  joining  a  convoy  every 
individual  ship  puts  off  her  pacific  character  and  undertakes  for  the 
discharge  of  duties  which  belong  only  to  the  military  and  marine  and 
adds  to  the  numerical  if  not  the  real  strength  of  tlie  convoy.  If,  then, 
the  association  be  voluntary,  the  neutral,  in  suffering  the  fate  of  the 
whole,  has   only  to  regret  his   own  folly  in   wedding  his  fortune  to 


CHAP.  IIT.]  THE   BRIG    "  SEA   NYMPH."  871 

theirs ;  or,  if  involved  in  the  aggression  or  opposition  of  the  convoying 
vessel,  he  shares  the  fate  which  the  leader  of  his  own  choice  either  was 
or  would  have  been  made  liable  to  in  case  of  capture." 

In  the  case  of  the  Four  Sisters,  INIcLean,  master,  ]N"o.  18(5,  this  court 
decided,  as  a  conclusion  of  law,  that  the  seizure  and  condemnation 
was  not  illegal,  and  that  the  owners  and  insurers  had  no  claim  of 
indemnity,  therefore,  on  the  French  Government  prior  to  the  ratification 
of  the  convention  of  the  30th  of  September,  1800  ;  that  the  said  claim 
was  not  relinquished  to  France  by  the  government  of  the  United 
States,  and  that  the  claimants  are  not  entitled  to  recover  from  the  United 
States,  as  the  Four  Sisters  was  well  armed,  and  when  taken  was  vigor- 
ously resisting  search.  No  opinion  was  given  in  that  case,  but  in 
the  case  of  the  Nancy  it  is  said,  in  substance,  that  the  authorities  agree 
that  visit  and  search  in  time  of  war  are  belligerent  rights  of  self-pres- 
ervation, to  which  the  neutral  must  submit ;  and  that  actual  resistance 
to  the  exercise  of  such  right  authorizes  condemnation;  that  voluntary 
submission  to  a  belligerent  convoy  is  constructive  resistance,  which 
authorizes  seizure;  that  up  to  that  point  authorities  are  united,  but 
they  are  not  agreed  as  to  the  result  of  constructive  resistance  — 
whether  it  raises  the  conclusive  presumption  or  presents  only  sus- 
picious circumstances  capable  of  explanation.  It  is  contended  that 
circumstances  might  justify  a  neutral  being  in  the  company  of  a  con- 
voy, and,  if  satisfactory,  might  excuse  such  neutral  from  the  conse- 
quences of  condemnation.  In  this  case  there  are  no  explanations  or 
circumstances  which  tend  in  their  legal  effect  to  excuse  or  mitigate 
the  results  growing  out  of  the  constructive  resistance. 

The  court  held  in  the  case  of  the  Xancij  that  the  weight  of  authority 
was  against  the  claimant,  and  that  if  a  neutral  vessel  is  captured  when 
under  the  protection  of  an  enemy's  vessel  of  war  it  is  for  that  reason 
good  and  lawful  prize. 

In  the  case  of  the  Maria,  reported  in  1  C.  Rob.  340,  it  was  held  that 
a  vessel  sailing  under  convoy  of  an  armed  ship  for  the  purpose  of 
resisting  visitation  and  search  was  subject  to  condemnation  because  of 
that  fact.  It  is  said  in  the  opinion  of  the  court,  by  Sir  William 
Scott : 

"  How  stands  it  by  the  general  law  ?  I  do  not  say  that  cases  may 
not  occur  in  which  a  ship  may  be  authorized  by  the  natural  rights  of 
self-preservation  to  defend  itself  against  extreme  violence  threatened 
by  a  cruiser  grossly  abusing  his  commission,  but  where  the  utmost 
injury  threatened  is  the  being  carried  in  for  inquiry  into  the  nearest 
port,  siibject  to  a  full  responsibility  in  costs  and  damages  if  this  is 
done  vexatiously  and  without  just  cause,  a  merchant  vessel  lias  not  a 
right  to  say,  for  itself  (and  an  armed  vessel  has  no  right  to  say  for  it), 


872  BELLIGERENTS    AND    NEUTRALS.  [PART  II. 

'I  will  submit  to  no  such  inquiry,  but  I  will  take  the  law  into  my  own 
hands  by  force.'  What  is  to  be  the  issue  if  each  neutral  vessel  has  a 
right  to  judge  for  itself  in  the  first  instance  whether  it  is  rightly 
detained  and  to  act  upon  that  judgment  to  the  extent  of  using  force? 
Surely  nothing  but  battle  and  bloodshed,  as  often  as  there  is  anything 
like  an  equality  of  force  or  equality  of  spirit." 

It  is  said  by  Sir  Sherston  Baker,  in  his  work  on  international  law, 
section  17,  page  289,  in  substance,  that  the  question  whether  neutral 
vessels  under  enemy's  convoy  are  liable  to  capture  and  condemnation 
has  been  elaborately  discussed,  and  that  in  the  case  of  the  Samjjson  the 
Court  of  Appeals,  in  England,  decided  that  sailing  under  an  enemy's 
convoy  was  a  conclusive  ground  of  condemnation.  In  that  connection 
it  is  said  in  substance,  by  the  same  distinguished  author,  that  the 
exercise  of  the  right  of  search  within  its  true  limits  implies  the  right 
of  using  lawful  force  if  necessary  in  its  execution,  the  same  as  in  the 
execution  of  a  civil  process  on  land.  This  right  on  one  side  implies 
the  corresponding  obligation  and  duty  on  the  other  of  submission  ;  and 
as  the  belligerent  may  lawfully  apply  his  force  to  the  neutral  property 
for  the  purpose  of  ascertaining  its  character  and  destination,  it  follows, 
as  a  logical  effect  and  necessity,  that  the  neutral  may  not  lawfully 
resist  the  lawful  exercise  of  the  right  of  search.     Sec.  11,  p.  296. 

It  is  insisted  by  counsel  for  the  claimant  that  it  is  not  shown  that 
at  the  time  of  the  capture  the  ship  was  under  convoy.  In  reply  to 
that  it  may  be  said  that  it  is  shown  by  the  decree  that  on  the  l-ith  of 
May,  1797,  the  ship  sailed  under  a  British  convoy,  and  that  on  the 
next  day  she  was  captured.  It  is  a  familiar  principle  of  law  that  a 
condition  once  established  is  presumed  to  continue  until  it  is  shown 
that  a  change  had  taken  place;  and  the  burden  of  proof  being  on  the 
claimant  to  show  that  a  change  had  taken  place  at  the  time  of  cap- 
ture, the  presumption  prevails  "with  its  legal  effects  against  the  claim- 
ant in  the  absence  of  such  a  showing. 

For  the  reasons  above  stated  the  court  decides,  as  a  conclusion  of 
law,  that  the  seizure  and  condemnation  were  lawful,  and  that  the 
owners  and  insurers  had  no  valid  claim  for  indemnit}^  therefor  upon 
the  French  Government  prior  to  the  ratification  of  the  convention 
between  the  United  States  and  the  French  Republic  concluded  on 
the  PiOth  day  of  September,  1830,  and  that  the  claims  were  not  relin- 
quished to  France  by  the  government  of  the  United  States  by  said 
treaty  in  part  consideration  of  the  relinquishment  of  certain  national 
claims  of  France  against  the  United  States,  and  that  the  claimants 
are  not  entitled  to  recover  from  the  United  States. 

The  facts  in  detail,  with  a  copy  of  this  opinion,  will  be  certified  to 
Congress  in  accordance  with  the  statute. 


CHAP.  III.]  THE   "  MARIANXA    FLORA."  873 

THE   "MAEIANNA  FLORA." 
Supreme  Court  of  the  United  States,  1826. 

(11  Wheato)i,  1.) 

Mr.  Justice  Story  delivered  the  opinion  of  the  court.^ 

In  considering  the  circumstances,  the  court  has  no  difficulty  in  decid- 
ing that  this  is  not  a  case  of  a  piratical  aggression,  in  the  sense  of  the 
act  of  Congress.  Tlie  Portuguese  ship,  tliough  armed,  was  so  for  a 
purely  defensive  mercantile  purpose.  She  was  bound  homewards  wdth 
a  valuable  cargo  on  board,  and  could  have  no  motive  to  engage  in  any 
piratical  act  or  enterprise.  It  is  true,  tliat  she  made  a  meditated,  and, 
in  a  sense,  a  hostile  attack,  upon  the  AU'ujatnr,  witli  the  avowed  in- 
tention of  repelling  her  approach,  or  of  crippling  or  destroying  her. 
But,  there  is  no  reason  to  doubt,  that  this  attack  was  not  made  with  a 
piratical  or  felonious  intent,  or  for  the  purpose  of  wanton  plunder,  or 
malicious  destruction  of  property.  It  was  done  upon  a  mistake  of  the 
facts,  under  the  notion  of  just  self-defence,  against  what  the  master 
very  imprudently  deemed  a  piratical  cruiser.  The  combat  was,  there- 
fore, a  combat  on  mutual  misapprehension  ;  and  it  ended  without  any 
of  those  calamitous  consequences  to  life  which  might  have  brought 
very  painful  considerations  before  the  court. 

It  has,  indeed,  been  argued  at  the  bar,  that  even  if  this  attack  had 
been  a  piratical  aggression,  it  would  not  have  justified  the  capture  and 
sending  in  of  the  ship  for  adjudication,  because  foreign  ships  are  not  to 
be  governed  by  our  municipal  regulations.  But  the  act  of  Congress  is 
decisive  on  this  subject.  It  not  only  authorizes  a  capture,  but  a  con- 
demnation in  our  courts,  for  such  aggressions  ;  and  whatever  may  be 
the  responsibility  incurred  by  the  nation  to  foreign  powers,  in  execut- 
ing such  laws,  there  can  be  no  doubt  that  courts  of  justice  are  bound 
to  obey  and  administer  them. 

The  other  count,  which  seeks  condemnation  on  the  ground  of  an 
asserted  hostile  aggression,  admits  of  a  similar  answer.  It  proceeds 
upon  the  principle,  that,  for  gross  violations  of  the  law  of  nations  on 
the  high  seas,  the  penalty  of  confiscation  may  be  properly  inflicted 
upon  the  offending  property.  Supposing  the  general  rule  to  be  so  in 
ordinary  cases  of  property  taken  in  delicto,  it  is  not,  therefore,  to  be 
admitted,  that  every  offence,  however  small,  however  done  under  a 
mistake  of  rights,  or  for  purposes  wholly  defensive,  is  to  be  visited 

^  Facts  of  the  case,  the  question  of  damages,  and  part  of  the  opinion  are 
omitted.  —  Ed. 


874  BELLIGERENTS    AND    NEUTRALS.  [PART  IL 

with  such  harsh  punishments.  Whatever  may  be  the  case,  where  a 
gross,  fraudulent,  and  unprovoked  attack  is  made  by  one  vessel  upon 
another  upon  the  sea,  which  is  attended  with  grievous  loss  or  injury, 
such  effects  are  not  to  be  attributed  to  lighter  faults,  or  common  negli- 
gence. It  may  be  just,  in  such  cases,  to  award  to  the  injured  party 
full  compensation  for  his  actual  loss  and  damage;  but  the  infliction  of 
any  forfeiture  beyond  this  does  not  seem  to  be  pressed  by  any  con- 
siderations derived  from  public  law. 

Pirates  may,  without  doubt,  be  lawfully  captured  on  the  ocean  by 
the  public  or  private  ships  of  every  nation  ;  for  they  are,  in  truth,  the 
common  enemies  of  all  mankind,  and,  as  such,  are  liable  to  the  extreme 
rights  of  war.  And  a  piratical  aggression  by  an  armed  vessel  sailing 
under  the  regular  flag  of  any  nation,  may  be  justly  subjected  to  the 
penalty  of  confiscation  for  such  a  gross  breach  of  the  law  of  nations. 
But  every  hostile  attack,  in  a  time  of  peace,  is  not  necessarily  pirati- 
cal. It  may  be  by  mistake,  or  in  necessary  self-defence,  or  to  repel  a 
supposed  meditated  attack  by  pirates.  It  may  be  justifiable,  and  then 
no  blame  attaches  to  the  act;  or,  it  may  be  without  just  excuse,  and 
then  it  carries  responsibility  in  damages.  If  it  proceed  farther,  if  it 
be  an  attack  from  revenge  and  malignity,  from  gross  abuse  of  power, 
and  a  settled  purpose  of  mischief,  it  then  assumes  the  character  of  a 
private  unauthorized  war,  and  may  be  punished  by  all  the  penalties 
which  the  law  of  nations  can  properly  administer. 

These  latter  ingredients  are  entirely  wanting  in  the  case  before  us  ; 
and,  therefore,  if  the  question  of  forfeiture  were  now  in  judgment,  we 
should  have  no  doubt,  either  upon  the  act  of  Congress,  or  the  geiieral 
law,  that  it  ought  not  to  be  enforced. 

But,  in  the  present  posture  of  this  cause,  the  libellants  are  no  longer 
plaintiffs.  The  claimants  interpose  for  damages  in  their  turn,  and 
have  assumed  the  character  of  actors.  They  contend  that  they  are 
entitled  to  damages,  first,  because  the  conduct  of  Lieutenant  Stockton, 
in  the  approach  and  seizure  of  the  Marianna  Flora,  was  unjustifiable; 
and,  secondly,  because,  at  all  events,  the  subsequent  sending  her  in 
for  adjudication  was  without  any  reasonable  cause. 

In  considering  these  points,  it  is  necessary  to  ascertain  what  are  the 
rights  and  duties  of  armed  and  other  ships,  navigating  the  ocean  in 
time  of  peace.  It  is  admitted,  that  the  right  of  visitation  and  search 
does  not,  under  such  circumstances,  belong  to  the  public  ships  of  any 
nation.  This  right  is  strictly  a  belligerent  right,  allowed  by  the 
general  consent  of  nations  in  time  of  war,  and  limited  to  those  occa- 
sions. It  is  true,  that  it  has  l)een  held  in  the  courts  of  this  country, 
that  American  ships,  offending  against  our  laws,  and  foreign  ships,  in 
like  manner,  offending  within  our  jurisdiction,   may,  afterwards,  be 


CHAP.  III.]  THE   "  MARIANNA   FLORA."  875 

pursued  and  seized  upon  the  ocean,  and  rightfully  brought  into  our 
ports  for  adjudication.  This,  however,  has  never  been  supposed  to 
draw  after  it  any  right  of  visitation  or  search.  The  party,  in  such 
case,  seizes  at  liis  peril.  If  he  establishes  the  forfeiture,  he  is  justi- 
fied.    If  he  fails,  he  must  make  full  compensation  in  damages. 

Upon  tlie  ocean,  then,  in  time  of  peace,  all  possess  an  entire 
equality.  It  is  the  common  highway  of  all,  appropriated  to  the  use 
of  all;  and  no  one  can  vindicate  to  himself  a  superior  or  exclusive 
prerogative  there.  Every  ship  sails  there  with  the  unquestionable 
right  of  pursuing  her  own  lawful  business  without  interruption ;  but, 
whatever  may  be  that  business,  she  is  bound  to  pursue  it  in  such  a 
manner  as  not  to  violate  the  rights  of  others.  The  general  maxim  in 
such  eases  is,  sic  utere  tuo,  ut  non  allenum  Icvdas. 

It  has  been  argued,  that  no  ship  has  a  right  to  approach  another  at 
sea;  and  that  every  ship  has  a  right  to  draw  round  her  a  line  of  juris- 
diction, within  -which  no  other  is  at  liberty  to  intrude.  In  short,  that 
she  may  appropriate  so  much  of  the  ocean  as  she  may  deem  necessary 
for  her  protection,  and  prevent  any  nearer  approach. 

This  doctrine  appears  to  us  novel,  and  is  not  supported  by  any  au- 
thority. It  goes  to  establish  upon  the  ocean  a  territorial  jurisdiction, 
like  that  which  is  claimed  by  all  nations  within  cannon-shot  of  their 
shores,  in  virtue  of  their  general  sovereignty.  But  the  latter  right  is 
founded  upon  the  principle  of  sovereign  and  permanent  appropriation, 
and  has  never  been  successfully  asserted  beyond  it.  Every  vessel 
undoubtedly  has  a  right  to  the  use  of  so  much  of  the  ocean  as  she 
occupies,  and  as  is  essential  to  her  own  movements.  Beyond  this, 
no  exclusive  right  has  ever  yet  been  recognized,  and  we  see  no  reason 
for  admitting  its  existence.  Merchant  ships  are  in  the  constant  habit 
of  approaching  each  other  on  the  ocean,  either  to  relieve  their  own 
distress,  to  procure  information,  or  to  ascertain  the  character  of 
strangers ;  and,  hitherto,  there  has  never  been  supposed  in  such 
conduct  any  breach  of  the  customary  observances,  or  of  the  strictest 
principles  of  the  law  of  nations.  In  respect  to  ships  of  war  sailing,  as 
in  the  present  case,  under  the  authority  of  their  government,  to  arrest 
pirates,  and  other  public  offenders,  there  is  no  reason  why  they  may 
not  approach  any  vessels  descried  at  sea,  for  the  purpose  of  ascertain- 
ing their  real  characters.  Such  a  right  seems  indispensable  for  the 
fair  and  discreet  exercise  of  their  authority ;  and  the  use  of  it  cannot 
be  justly  deemed  indicative  of  any  design  to  insult  or  injure  those  they 
approach,  or  to  impede  them  in  their  lawful  commerce.  On  the  other 
hand,  it  is  as  clear,  that  no  ship  is,  under  such  circumstances,  bound 
to  lie  by,  or  wait  the  approach  of  any  other  ship.  She  is  at  full  liberty 
to  pursue  her  voyage  in  her  own  way,  and  to  use  all  necessary  precau- 


876  BELLIGERENTS    AND    NEUTRALS,  [PART  11. 

tions  to  avoid  any  suspected  sinister  enterprise  or  hostile  attack.  She 
has  a  right  to  cousult  her  own  safety  ;  but,  at  the  same  time,  she  must 
take  care  not  to  violate  the  rights  of  others.  She  may  use  any  precau- 
tions dictated  by  the  prudence  or  fears  of  her  officers ;  either  as  to  de- 
lay, or  the  progress  or  course  of  her  voyage;  but  she  is  not  at  liberty  to 
inflict  injui'ies  upon  other  innocent  parties,  simply  because  of  conjectural 
dangers.  These  principles  seem  to  us  the  natural  result  of  the  com- 
mon duties  and  rights  of  nations  navigating  the  ocean  in  time  of  peace. 
Such  a  state  of  things  carries  with  it  very  different  obligations  and 
responsibilities  from  those  which  belong  to  public  war,  and  is  not  to 
be  confounded  with  it. 

The  first  inquiry,  then,  is,  whether  the  conduct  of  Lieutenant  Stock- 
ton was,  under  all  the  circumstances  preceding  and  attending  the  com- 
bat, justifiable.  There  is  no  pretence  to  say  that  he  committed  the 
first  aggression.  That,  beyond  all  question,  was  on  the  part  of  the 
Marianna  Flora  ;  and  her  firing  was  persisted  in  after  the  AUitjator 
had  hoisted  her  national  flag,  and,  of  course,  held  out  a  signal  of  her 
real  pacific  character.  What,  then,  is  the  excuse  for  this  hostile  at- 
tack ?  Was  it  occasioned  by  any  default  or  misconduct  on  the  part  of 
the  Alligator?  It  is  said,  that  the  Alligator  had  no  right  to  approach 
the  Mariamia  Flora,  and  that  the  mere  fact  of  approach  authorized  the 
attack.  This  is  what  the  court  feels  itself  bound  to  deny.  Lieutenant 
Stockton,  with  a  view  to  the  objects  of  his  cruise,  had  just  as  unques- 
tionable a  right  to  use  the  ocean,  as  the  Portuguese  ship  had  ;  and  his 
right  of  approach  was  just  as  perfect  as  her  right  of  flight.  But,  in 
point  of  fact.  Lieutenant  Stockton's  approach  was  not  from  mere 
motives  of  public  service,  but  was  occasioned  by  the  acts  of  the  Marl- 
anna  Flora.  He  was  steering  on  a  course  which  must,  in  a  short  time, 
have  carried  him  far  away  from  her.  She  lay  to,  and  showed  a  signal 
ordinarily  indicative  of  distress.  It  was  so  understood,  and,  from 
motives  of  humanity,  the  course  was  changed,  in  order  to  afford  the 
necessary  relief.  There  is  not  a  pretence  in  the  whole  evidence,  that 
the  lying  to  was  not  voluntary,  and  was  not  an  invitation  of  some  sort. 
The  whole  reasoning  on  the  part  of  the  claimants  is,  that  it  was  for 
the  purpose  of  meeting  a  supposed  enemy  by  daylight,  and,  in  this 
way,  to  avoid  the  difficulties  of  an  engagement  in  the  night.  But  how 
was  this  to  be  known  on  board  of  the  Alligator!  How  was  it  to  be 
known  that  she  was  a  Portuguese  ship,  or  that  she  took  the  Alligator 
for  a  pirate,  or  that  her  object  in  laying  to  was  a  defensive  operation  ? 
AVhen  the  vessels  were  within  reach  of  each  other,  the  first  salutation 
from  the  ship  was  a  shot  fired  ahead,  and,  at  the  same  time,  no  national 
flag  appeared  at  the  mast-head.  The  ship  was  armed,  appeared  full  of 
men,  and,  from  her  manoeuvres,  almost  necessarily  led  to  the  supposi- 


CHAr.  III.]  THE    "  MARIANNA    FLORA."  877 

tion,  that  her  previous  conduct  was  a  decoy,  and  tliat  she  was  either  a 
piratical  vessel,  or,  at  least,  in  possession  of  pirates.  Under  sucli  cir- 
cumstances, with  hostilities  already  proclaimed,  Lieutenant  Stockton 
was  certainly  not  bound  to  retreat;  and,  upon  his  advance,  other  yuns, 
loaded  with  shot,  were  fired,  for  the  express  purpose  of  destruction. 
It  was,  then,  a  case  of  open,  meditated  hostility,  and  this,  too,  without 
any  national  flag  displayed  by  the  Portuguese  ship,  which  might  tend 
to  correct  the  error,  for  she  never  hoisted  her  flag  until  the  surrender. 
What,  then,  was  Lieutenant  Stockton's  duty  ?  In  our  view  it  was 
plain;  it  was  to  oppose  force  to  force,  to  attack  and  to  subdue  the 
vessel  thus  prosecuting  unauthorized  warfare  upon  his  schooner  and 
crew.  In  taking,  therefore,  the  readiest  means  to  accomplish  the 
object,  he  acted,  in  our  opinion,  with  entire  legal  propriety.  He  was 
not  bound  to  fly,  or  to  wait  until  he  was  crippled.  His  was  not  a  case 
of  mere  remote  danger,  but  of  imminent,  pressing,  and  present  danger. 
He  had  the  flag  of  his  country  to  maintain,  and  the  rights  of  his 
cruiser  to  vindicate.  To  have  hesitated  in  what  his  duty  to  his 
government  called  for  on  such  an  occasion  would  have  been  to  betray 
(what  no  honorable  officer  could  be  supposed  to  indulge)  an  indiffer- 
ence to  its  dignity  and  sovereignty. 

But,  it  is  argued,  that  Lieutenant  Stockton  was  bound  to  have 
affirmed  his  national  flag  by  an  appropriate  gun ;  that  this  is  a  cus- 
tomary observance  at  sea,  and  is  universally  understood  as  indispen- 
sable to  prevent  mistakes  and  misadventures ;  and  that  the  omission 
was  such  a  default  on  his  part,  as  places  him  in  delicto  as  to  all  the 
subsequent  transactions.  This  imputation  certainly  comes  with  no 
extraordinary  grace  from  the  party  by  whom  it  is  now  asserted.  If 
such  an  observance  be  usual  and  necessary-,  why  was  it  not  complied 
with  on  the  part  of  the  Marianna  Floi'a?  Her  commander  asserts, 
that  by  the  laws  of  his  own  country,  as  well  as  those  of  France  and 
Spain,  this  is  a  known  and  positive  obligation  on  all  armed  vessels, 
which  they  are  not  at  liberty  to  disregard.  Upon  what  ground,  tlien, 
can  he  claim  an  exemption  from  performing  it  ?  Upon  what  ground 
can  he  set  up  as  a  default  in  another,  that  which  he  has  wholly 
omitted  to  do  on  his  own  part  ?  His  own  duty  was  clear,  and  pointed 
out;  and  yet  he  makes  that  a  matter  of  complaint  against  the  other 
side,  which  was  confessedly  a  primary  default  in  himself.  He  not 
only  did  not  hoist  or  affirm  his  flag  in  the  first  instance,  but  repeatedly 
fired  at  his  adversary  with  hostile  intentions,  without  exhibiting  his 
own  national  character  at  all.  He  left,  therefore,  according  to  his 
own  view  of  the  law,  his  own  duty  unperformed,  and  fortified,  as 
against  himself,  the  very  inference,  that  his  ship  might  properly  be 
deemed,  under  such  circumstances,  a  piratical  cruiser. 


878  BELLIGERENTS   AND   NEUTRALS.  [PART  IL 

1  But  we  are  not  disposed  to  admit  that  there  exists  any  such  uni- 
^  versal  rule  or  obligation  of  an  affirming  gun,  as  has  been  suggested  at 
the  bar.  It  may  be  the  law  of  the  maritime  states  of  the  European 
continent  already  alluded  to,  founded  in  their  own  usages  or  positive 
regulations.  But,  it  does  not  hence  follow,  that  it  is  binding  upon  all 
other  nations.  It  was  admitted,  at  the  argument,  that  the  English 
practice  is  otherwise;  and,  surely,  as  a  maritime  power,  England 
deserves  to  be  listened  to  with  as  much  respect,  on  such  a  point,  as  any 
other  nation.  It  was  justly  inferred,  that  the  practice  of  America  is 
conformable  to  that  of  England  ;  and  the  absence  of  any  counterproof 
on  the  record,  is  almost  of  itself  decisive.  Such,  however,  as  the  prac- 
tice is,  even  among  the  continental  nations  of  Eurojje,  it  is  a  practice 
adopted  with  reference  to  a  state  of  war,  rather  than  peace.  It  may 
be  a  useful  precaution  to  prevent  conflicts  between  neutrals,  and  allies, 
and  belligerents,  and  even  between  armed  ships  of  the  same  nation. 
But  the  very  necessity  of  the  precaution  in  time  of  war  arises  from 
circumstances  which  do  not  ordinarily  occur  in  time  of  general  peace. 
Assuming,  therefore,  that  the  ceremony  might  be  salutary  and  proper 
in  periods  of  war,  and  suitable  to  its  exigencies,  it  by  no  means  fol- 
lows that  it  is  justly  to  be  insisted  on  at  the  peril  of  costs  and 
damages  in  peace.  In  any  view,  therefore,  we  do  not  think  this 
omission  can  avail  the  claimants. 

Again,  it  is  argued,  that  there  is  a  general  obligation  upon  armed 
ships,  in  exercising  the  right  of  visitation  and  search,  to  keep  at  a 
distance,  out  of  cannon-shot,  and  to  demean  themselves  in  such  a 
manner  as  not  to  endanger  neutrals.  And  this  objection,  it  is  added, 
has  been  specially  provided  for,  and  enforced  by  the  stipulations  of 
many  of  our  own  treaties  with  foreign  powers.  It  might  be  a  decisive 
answer  to  this  argument,  that,  here,  no  right  of  visitation  and  search 
was  attempted  to  be  exercised.  Lieutenant  Stockton  did  not  claim  to 
be  a  belligerent,  entitled  to  search  neutrals  on  the  ocean.  His  com- 
mission was  for  other  objects.  He  did  not  approach  or  subdue  the 
Marinnna  Flora,  in  order  to  compel  her  to  submit  to  his  search,  but 
with  other  motives.  He  took  possession  of  her,  not  because  she 
resisted  the  right  of  search,  but  because  she  attacked  him  in  a  hostile 
manner,  without  any  reasonable  cause  or  provocation. 

Doubtless,  the  obligation  of  treaties  is  to  be  observed  with  entire 
good  faith,  and  scrupulous  care.  But  stipulations  in  treaties  having 
sole  reference  to  the  exercise  of  the  rights  of  belligerents  in  time  of 
war  cannot,  upon  any  reasonable  principles  of  construction,  be  applied 
to  govern  cases  exclusively  of  another  nature,  and  belonging  to  a  state 
of  peace.  Another  consideration,  quite  sufficient  to  establish  that  such 
stipulations  cannot  be  applied  in  aid  of  the  present  case,  is,  that  what- 


CHAP.  III.]      THE    SHIP   "  ROSE "  V.    THE   UNITED    STATES.  879 

ever  may  be  our  duties  to  other  nations,  we  have  no  such  treaty  sub- 
sisting with  Portugah  It  will  scarcely  be  pretended,  that  we  are 
bound  to  Portugal  by  stipulations  to  which  she  is  no  party,  and  by 
which  she  incurs  no  correspondent  obligation. 


THE   SHIP   "PvOSE"   V.    THE   UNITED   STATES. 
United  States  Court  of  Claims,   1901. 

(36  Court  of  Claims,  291.) 

Weldon,  J.,  delivered  the  opinion  of  the  court :^  — 

The  facts  show  that  the  ship  Rose,  William  Chase,  master,  sailed 
on  a  commercial  voyage  from  Newbury  port,  Mass.,  on  the  20th  of 
March,  1799,  bound  for  Surinam,  and  thence  sailed  on  the  23d  of 
July,   1799,   bound  home  to  Newburyport. 

While  pursuing  the  last  voyage  she  was  captured  on  the  high  seas 
on  the  31st  of  July,  1799,  by  the  French  cruiser  L^ E'jypt  Conquise, 
mounting  14  guns  and  120  men;  after  an  action  of  two  and  one-half 
hours,  in  Avhich  the  master  of  the  Rose  lost  3  men  killed  and  14 
wounded,  and  the  French  lost  25  killed  and  21  wounded,  the  Rose  was 
captured  and  taken  into  Guadeloupe,  where,  on  the  6th  day  of  August, 
1799,  the  vessel  and  cargo  were  condemned  by  the  tribunal  of  com- 
merce, sitting  at  Basse  Terre,  Guadeloupe,  under  a  decree  in  which 
it  is  alleged  that  "the  captain  of  said  ship  was  the  bearer  of  a  com- 
mission from  the  President  of  the  United  States  which  authorized 
him  to  capture  French  armed  vessels  and  carry  them  into  any  port  of 
the  United  States,  and  that  the  captain  of  the  vessel  resisted  until 
he  was  subdued  by  force  of  arms.  In  view  of  these  facts  the  court 
makes  reference  to  articles  in  justification  of  said  proceedings."  The 
findings  establish  the  fact  that  the  American  ship  resisted  most  vigor- 
ously the  attempted  right  of  search  upon  the  part  of  the  French  ship, 
and  we  are  to  determine  from  that  condition  as  an  incident  of  the 
seizure  whether  such  seizure  and  condemnation  were   illegal. 

The  legal  effect  of  resisting  search  on  the  part  of  the  American 
ship,  when  it  was  sought  to  be  exercised  on  the  part  of  the  French 
ship,  has  not  been  determined  by  any  adjudication  of  this  court  in 
the  various  cases  tried  under  the  act  of  Congress,  giving  this  court 
jurisdiction  to  determine  the  claims  of  American  citizens  for  alleged 
spoliations  committed  by  the  French  prior  to  the  1st  day  of  July, 
1801. 

The  nearest  approach  that  the  court  has  made  to  the  subject  of  the 

1  The  statement  of  the  original  report  is  omitted.  —  Ed. 


880  BELLIGERENTS    AND    NEUTRALS.  [PAIiT  II. 

right  of  search  is  in  the  case  of  the  Xoncy  (27  C.  Cls.  R.  p.  99).  In 
that  case  the  ship  sailed  from  Baltimore  m  1797;  was  captured  by  an 
English  ship  and  sent  to  St.  Nicholas  Mole,  and  there  the  master  was 
ordered  not  to  depart  without  a  convoy.  She  sailed  under  the  escort 
of  a  privateer  for  Jeremie  and  returned  to  the  Mole  under  escort. 
On  the  return  voyage  the  Nancij  was  captured  by  a  French  privateer. 
It  is  said  in  that  case  that  "the  question  whether  a  neutral  vessel  laden 
with  neutral  cargo  is  liable  to  condemnation  if  captured  under  enemy 
convoy  has  never  been  directly  determined;  but  on  a  review  of  the 
cases  and  elementary  writers  it  is  now  held  that  if  cajjtured  when 
actually  and  voluntarily  under  the  protection  of  an  enemy  she  is 
liable."  Sailing  under  the  convoy  of  an  enemy  is  the  exercise  of  the 
same  power  which  is  brought  into  requisition  on  the  part  of  a  neutral 
vessel  when  it  resists  the  right  of  search  by  actual  force. 

If  sailing  under  a  convoy  of  an  enemy  of  the  belligerent  is  a  just 
ground  for  seizure  and  condemnation,  it  must  follow  that  resisting 
the  exercise  of  search,  as  it  was  in  this  case,  involves  as  serious  con- 
sequences to  the  neutral  vessel  as  where  the  right  was  denied  by  the 
presence  and  use  of  a  convoy. 

It  is  not  necessary  to  multiply  authorities  to  establish  the  right  of 
search.  It  is  said  by  Chancellor  Kent  (1  Kent's  Commentaries,  p. 
155)  that  '■  in  order  to  enforce  the  rights  of  belligerent  nations  against 
the  delinquencies  of  neutrals,  and  to  ascertain  the  real  as  well  as  the 
assumed  character  of  all  vessels  on  the  high  seas,  the  law  of  nations 
arms  them  with  the  practical  power  of  visitation  and  search.  The 
duty  of  self-preservation  gives  to  belligerent  nations  this  right.  It 
is  founded  upon  necessity,  and  is  strictly  and  exclusively  a  war  right, 
and  does  not  rightfully  exist  in  time  of  peace,  unless  conceded  by 
treaty.  All  writers  upon  the  law  of  nations,  and  the  highest  authori- 
ties, acknowledge  the  right  in  time  of  war  as  resting  on  sound  prin- 
ciples of  public  jurisprudence  and  upon  the  institutes  and  practice  of 
all  great  maritime  powers."  It  is  said  by  the  same  authority,  page 
154:  "The  whole  doctrine  was  ably  discussed  in  the  English  High 
Court  of  Admiralty  in  the  case  of  the  ]\f<u-ia,  and  it  was  adjudged  that 
the  right  was  incontestable,  and  that  a  neutral  sovereign  could  not, 
by  the  interposition  of  force,   vary  that  right." 

In  that  case  it  is  said  by  Sir  William  Scott,  in  stating  the  prin- 
ciples of  international  law  upon  the  subject  of  search  and  of  the  right 
of  a  belligerent  to  search  neutral  vessels  engaged  in  commerce  on  the 
high  seas,  "that  the  right  of  visiting  and  searching  merchant  ships 
u])on  the  high  seas,  whatever  be  tlie  ships,  whatever  be  the  cargo, 
wliatever  be  the  destination,  is  an  incontestable  right  of  lawfully 
commissioned  cruisers  of  a  belligerent  nation.     I  say,  be  the  ships, 


CHAP.  III.]       THE    SHIP    "ROSE"    V.   THE    UNITED   STATES.  881 

the  cargoes,  and  destinations  what  they  may,  because  till  they  are 
visited  and  searched  it  does  not  appear  what  the  ships,  the  cargo,  or 
the  destinations  are,  and  it  is  for  the  purpose  of  ascertaining  these 
points  that  the  necessity  of  this  right  of  search  exists." 

Chancellor  Kent,  page  lo.j,  in  further  elaboration  of  the  doctrine 
of  the  right  of  search,  states  the  circumstances  which  might  consti- 
tute an  exception  to  that  general  rule,  which  makes  it  the  duty  of  the 
neutral  to  subject  itself  to  the  jurisdiction  of  the  belligerent  in  the 
exercise  of  the  right  of  search.     He  says :  — 

"  There  may  be  cases  in  which  the  master  of  a  neutral  ship  may  be 
authorized  by  the  natural  right  of  self-preservation  to  defend  himself  ' 
against  extreme  violence  threatened  by  a  cruiser  grossly  abusing  his  ' 
commission;  but  except  in  extreme  cases  a  merchant  vessel  has  no 
right  to  say  for  itself,  and  an  armed  vessel  has  no  right  to  say  for  it, 
that  it  will  not  submit  to  visitation  and  search  or  be  carried  into  an 
proximate  port  for  judicial  inquiry." 

The  circumstances  of  this  capture  do  not  indicate  that  the  condi- 
tion cited  by  Chancellor  Kent  (which  may  be  regarded  as  an  excep- 
tion to  the  general  rule)  existed  in  this  case.  While  there  might 
have  been  in  the  minds  of  the  crew  of  the  neutral  vessel  grave  appre- 
hensions of  ultimate  condemnation,  even  with  reference  to  the  legiti- 
mate defences,  that  condition  of  apprehension  u])on  the  part  of  the 
resisting  neutral  did  not  justify  him  in  denying  the  right  of  search 
to  the  belligerent.  The  circumstances  of  this  case  disclose  a  most 
vigorous  assault  and  defence,  there  being  twenty-four  men  killed  and 
thirty-six  wounded  during  the  encounter  between  the  respective  ves- 
sels. This  was  actual  resistance,  and  was  only  overcome  by  the  most 
determined  effort  upon  the  part  of  the  capturing  vessel. 

The  right  of  search  is  so  sacred  in  the  view  of  international  law 
that  it  is  protected  by  enforcing  the  consequences  of  resistance  where 
no  actual  resistance  is  made.  As  in  the  case  of  a  convoy,  it  has  been 
held  by  this  court  in  the  case  of  the  Nancy  (27  C.  Cls.  R.  99)  that 
the  presence  of  a  convoy  is  constructive  resistance  and  a  denial 
of  the  right  of  search,  which  authorizes  seizure  and  consequent 
condemnation. 

It  is  most  strenuously  and  ably  argued  by  counsel  that  at  the  date 
of  capture  there  was  in  existence  the  statute  of  June  25,  1798,  en- 
titled "An  act  to  authorize  the  defence  of  merchant  vessels  of  the 
United  States  against  French  depredations "  (1  Stat.  L.  572),  and 
that  by  virtue  of  the  provisions  of  that  act  the  commander  and  crew 
of  a  vessel  had  a  right  to  resist  by  all  means  in  their  power  an  at- 
tempt upon  the  part  of  a  French  commander  and  crew  to  search  the 
American  vessel.     It  is  provided  in  that  statute  — 

56 


882  BELLIGERENTS    AND    NEUTRALS.  [PART  II. 

"That  the  commander  and  crew  of  any  merchant  vessel  of  the 
United  States,  owned  Avholly  by  a  citizen  or  citizens  thereof,  may 
oppose  and  defend  against  any  search,  restraint,  or  seizure  which 
shall  be  attempted  upon  such  vessel  or  upon  any  other  vessel  owned, 
as  aforesaid,  by  the  commander  or  crew  of  any  armed  vessel  sailing 
under  French  cohu's,  or  acting  or  pretending  to  act  by  or  under  the 
authority  of  the  French  Republic;  and  may  repel  by  force  any  assault 
or  hostility  which  shall  be  made  or  committed  on  the  part  of  such 
Frencli  or  pretended  French  vessel  pursuing  such  attempt,  and  may 
subdue  and  capture  the  same,  and  may  also  retake  any  vessel  owned 
as  aforesaid  which  may  have  been  captured  by  any  vessel  sailing 
under  French  colors,  or  acting  or  pretending  to  act  by  or  under  au- 
thority from  the  French  Eepublic." 

"Whatever  may  be  said  as  to  the  condition  or  status  of  the  legal 
rights  and  obligations  of  the  French  and  American  Governments  be- 
fore the  act  July  9,  1798  (1  Stat.  L.  578),  it  must  be  assumed  that 
after  that  period  the  principles  and  rules  of  international  law  deter- 
mined and  controlled  the  parties  with  reference  to  their  rights  on  the 
high  seas. 

It  is  said,  in  the  case  of  the  Xancij  (supra),  "It  has  been  urged 
that  the  statute  of  the  United  States  authorizes  resistance  by  our 
merchantmen  to  French  visitation  and  search,  to  which  there  is  the 
simple  answer  that  no  single  State  can  change  the  law  of  nations  by 
its  municipal  regulations." 

The  contention  of  claimants'  counsel  with  reference  to  the  rights 
guaranteed  to  American  merchantmen  under  and  by  virtue  of  the  pro- 
visions of  the  act  of  1798  is  fully  answered  by  the  decision  of  this 
court  in  the  above  case.  If,  therefore,  at  the  time  of  this  seizure 
there  was  any  conflict  between  the  municipal  law  of  the  United 
States,  as  exemplified  in  the  statute,  and  the  well-recognized  prin- 
ciples of  international  law,  the  latter  must  prevail  in  the  determina- 
tion of  the  rights  of  the  parties. 

By  the  provisions  of  the  act  giving  this  court  jurisdiction  to  ascer- 
tain the  claims  of  American  citizens  for  spoliations  committed  by  the 
French  prior  to  the  31st  of  July,  1801,  it  is,  in  substance,  provided 
that  the  validity  of  said  claims  shall  be  determined  according  to  the 
rules  of  law,  municipal  and  international,  and  the  treaties  of  the 
United  States  applicable  to  the  same.  In  order  to  perform  the  duties 
consistent  with  the  requirements  of  the  statute,  the  court  must  give 
each  department  of  tlie  law  full  recognition  and  force  when  properly 
applicable  to  the  facts  and  circumstances  of  the  controversy  involved 
in  the  litigation. 

The  rights  of  the  claimant  are  to  be  measured  by  the  unlawful  acts 


CHAP.  III.]        THE   SHIP    "  ROSE  "    V.   THE    UNITED    STATES.  883 

of  France,  and  unless  a  wrong  exists  under  the  rules  of  international 
law,  no  liability  can  attach  to  the  United  States;  because,  by  the 
treaty  of  1800,  it  was  only  the  claims  growing  out  of  the  wrongful  act 
of  France  for  which  the  United  States  had  a  diplomatic  claim  and 
which  were  assumed  to  be  paid  to  the  citizen  whose  individual  right 
was  violated  in  that  wrong. 

This  court  in  making  the  investigation  contemplated  by  the  act  of  ■ 
our  jurisdiction  is  sitting  in  the  character  of  an  international  tribu-  I 
nal,  to  determine  the  diplomatic  rights  of  the  United  States  as  they  [ 
existed  against  France  prior  to  the  ratification  of  the  treaty  of  Sep- 
tember 30,  1800. 

The  municipal  law  in  the  absence  of  a  treaty  must  be  subordinated 
to  international  law  when  they  come  in  antagonism,  as  that  is  the 
law  common  to  both  parties. 

Where  the  question  is  not  exclusively  within  the  domain  of  inter- 
national law  then  the  municipal  law  may  be  invoked  to  determine  the 
proper  solution  of  the  question.  The  rules  of  property  by  which  the 
citizen  owned  the  subject-matter  of  the  seizure  and  condemnation  may 
be  properly  applied  in  ascertainment  of  his  rights,  and  so  may  many 
questions  of  the  law  of  evidence  be  decided  in  accordance  with  the 
n^unicipal  law  of  the  party  whose  rights  have  been  violated.  Con- 
gress, in  the  enactment  of  the  law  of  our  jurisdiction,  must  be  pre- 
sumed as  having  recognized  many  of  the  principles  of  municipal  law 
incident  to  our  forms  of  judicial  procedure  and  determination. 

It  has  been  argued  that  the  belligerent,  in  making  the  attack  on  the 
vessel  of  the  claimant,  was  not  in  the  exercise  of  the  legal  right  of 
search  as  incident  to  him  as  a  belligerent,  but  that  it  was  an  assault, 
the  object  and  purpose  of  which  was  the  seizure  and  condemnation 
without  reference  to  the  fact,  or  condition  of  being  a  neutral  vessel 
of  the  United  States  engaged  in  the  peaceful  and  lawful  commerce  of 
the  sea;  that  the  condition  existing  between  the  two  governments 
and  peoples  was  such  that  all  respect  of  neutral  rights  had  ceased, 
and  that  force,  fraud,  and  violence  prevailed,  and  in  that  connection 
much  is  said  as  to  the  right  of  self-defence. 

The  claimants  are  treading  on  very  dangerous  ground  when  they 
urge  the  higher  law  of  self-preservation.  Self-defence  is  founded  on 
the  theory  that  it  is  the  only  remedy,  and  that,  being  the  only  remedy, 
it  presupposes  the  absence  of  all  law  protecting  the  rights  of  him 
who  asserts  the  prerogative  of  self-defence.  If  the  right  of  self- 
defence  prevailed  to  the  extent  of  repelling  force  by  force,  and  was 
incident  to  the  crew  of  the  ship  captured,  then  all  other  law  was 
silent  and  war  prevailed,  which  condition  would  be  most  disastrous 
to  the  case  of  the  claimants. 


884  BELLIGERENTS   AND   NEUTRALS.  [PART  II. 

As  we  have  quoted  in  another  case,  decided  at  the  present  term  of 
court,  from  the  opinion  delivered  by  Sir  William  Scott  in  the  case  of 
the  Maria,  in  1  C.  E,ob.  340,  so  we  quote  upon  the  subject  of  the 
right  of  self-defence  in  this  case: 

"  How  stands  it  by  the  general  law  ?  I  do  not  say  that  cases  may 
not  occur  in  which  a  ship  may  be  authorized  by  the  natural  rights  of 
self-preservation  to  defend  itself  against  extreme  violence  threatened 
by  a  cruiser  grossly  abusing  his  commission;  but  where  the  utmost 
injury  threatened  is  the  being  carried  in  for  inquiry  into  the  nearest 
port,  subject  to  a  full  responsibility  in  costs  and  damages,  if  this  is 
done  vexatiously  and  without  just  cause,  a  merchant  vessel  has  not  a 
right  to  say  for  itself  (and  an  armed  vessel  has  not  a  right  to  say  for 
it),  '  I  will  submit  to  no  such  inquiry,  but  I  will  take  the  law  into  my 
own  hands  by  force.'  What  is  to  be  the  issue,  if  each  neutral  vessel 
has  a  right  to  judge  for  itself  in  the  first  instance  whether  it  is  rightly 
detained,  and  to  act  upon  that  judgment  to  the  extent  of  using  force  ? 
Surely  nothing  but  battle  and  bloodshed,  as  often  as  there  is  anything 
like  an  equality  of  force  or  an  equality  of  spirit." 

For  the  reasons  above  stated,  the  court  decides,  as  a  conclusion  of 
law,  that  the  seizure  and  condemnation  were  lawful  and  that  the 
owners  and  insurers  had  no  valid  claim  of  indemnity  therefor  upon 
the  French  Government  prior  to  the  ratification  of  the  convention  be- 
tween the  United  States  and  the  French  Republic,  coiicluded  on  the 
30th  day  of  September,  1800,  and  that  the  claims  were  not  relin- 
quished to  France  by  the  government  of  the  United  States  by  said 
treaty  in  part  consideration  of  the  relinquishment  of  certain  national 
claims  of  France  against  the  United  States,  and  that  the  claimants 
are  not  entitled  to  recover  from  the  United  States. 

The  facts  in  detail,  with  a  copy  of  this  opinion,  will  be  certified  to 
Congress  in  accordance  with  the  statute.^ 


THE    ''NEREIDE." 

Supreme  Court  of  the  United  States,  1815. 

(9  C ranch,  388.) 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court  as  follows:^ 
2.    Does  the  treaty  between  Spain  and  the  United  States  subject  the 
goods  of  either  paity,  being  neutral,  to  condemnation  as  enemy  prop- 

1  Accord  Tho.  Ship  Amazon  v.  U.  S.,  1901,  80  Ct.  CI.  890.  — Ei>. 

2  Statement  of  facts  and  discussion  of  evidence  omitted.  —  Ed. 


CHAP,  in.]  THE   "NEREIDE."  885 

erty,  if  found  by  tlie  other  in  the  vessel  of  an  enemy?  That  treaty 
stipuhites  that  neutral  bottoms  shall  make  neutral  goods,  but  contains 
no  stipulation  that  enemy  bottoms  shall  com;uunicate  the  liostile  char- 
acter to  the  cargo.  It  is  contended  by  the  captors  that  the  two  prin- 
ciples are  so  completely  identified  that  the  stipulation  of  the  one 
necessarily  includes  the  other. 

Let  this  proposition  be  examined. 

The  rule  that  the  goods  of  an  enemy  found  in  the  vessel  of  a  friend 
are  prize  of  war,  and  that  the  goods  of  a  friend  found  in  the  vessel 
of  an  enemy  are  to  be  restored,  is  believed  to  be  a  part  of  tlie  origi- 
nal law  of  nations,  as  generally,  perhaps  universally,  acknowledged. 
Certainly  it  has  been  fully  and  unequivocally  recognized  by  the  United 
States.  This  rule  is  founded  on  the  simple  and  intelligible  principle 
that  war  gives  a  full  right  to  capture  the  goods  of  an  enemy,  but  gives 
no  right  to  capture  the  goods  of  a  friend.  In  the  practical  applica- 
tion of  this  principle,  so  as  to  form  the  rule,  the  propositions  that  the 
neutral  flag  constitutes  no  protection  to  enemy  property,  and  that  the 
belligerent  flag  communicates  no  hostile  character  to  neutral  property, 
are  necessarily  admitted.  The  character  of  the  property,  taken  dis- 
tinctly and  separately  from  all  other  considerations,  depends  in  no 
degree  upon  the  character  of  the  vehicle  in  which  it  is  found. 

]\[any  nations  have  believed  it  to  be  their  interest  to  vary  this 
simple  and  natural  principle  of  public  law.  They  have  changed  it 
by  convention  between  themselves  as  far  as  they  have  believed  it  to 
be  for  their  advantage  to  change  it.  But  unless  there  be  something 
in  the  nature  of  the  rule  which  renders  its  j^arts  unsusceptible  of  divi- 
sion, nations  must  be  capable  of  dividing  it  by  express  compact,  and 
if  they  stipulate  either  that  the  neutral  flag  shall  cover  enemy  goods, 
or  that  the  enemy  flag  shall  infect  friendly  goods,  there  would,  in 
reason,  seem  to  be  no  necessity  for  implying  a  distinct  stipulation 
not  expressed  by  the  parties.  Treaties  are  formed  upon  deliberate 
reflection.  Diplomatic  men  read  the  public  treaties  made  by  other 
nations  and  cannot  be  supposed  either  to  omit  or  insert  an  article, 
common  in  public  treaties,  without  being  aware  of  the  effect  of  such 
omission  or  insertion.  Neither  the  one  nor  the  other  is  to  be  as- 
cribed to  inattention.  And  if  an  omitted  article  be  not  necessarily 
implied  in  one  which  is  inserted,  the  subject  to  which  that  article 
would  apply  remains  under  the  ancient  rule.  That  the  stipulation 
of  immunity  to  enemy  goods  in  the  bottoms  of  one  of  the  parties 
being  neutral  does  not  imply  a  surrender  of  the  goods  of  that  party 
being  neutral,  if  found  in  the  vessel  of  an  enemy,  is  the  proposition 
of  the  counsel  for  the  claimant,  and  he  powerfully  sustains  that  jiropo- 
sition  by  arguments  arising  from  the  nature  of  the  two  stipulations. 


886  BELLIGERENTS    AND    NEUTRALS-  [PART  IL 

The  agreement  that  neutral  bottoms  shall  make  neutral  goods  is,  he 
very  justly  remarks,  a  concession  made  by  the  belligerent  to  the  neu- 
tral. It  enlarges  the  sphere  of  neutral  commerce,  and  gives  to  the 
neutral  flag  a  capacity  not  given  to  it  by  the  law  of  nations. 

The  stipulation  which  subjects  neutral  property,  found  in  the  bot- 
tom of  an  enemy,  to  condemnation  as  prize  of  war,  is  a  concession 
made  by  the  neutral  to  the  belligerent.  It  narrows  the  sphere  of 
neutral  commerce,  and  takes  from  the  neutral  a  privilege  he  possessed 
under  the  law  of  nations.  The  one  may  be,  and  often  is,  exchanged 
for  the  other.  But  it  may  be  tlie  interest  and  the  will  of  both  parties 
to  stipulate  the  one  without  the  other;  and  if  it  be  their  interest,  or 
their  will,  what  shall  prevent  its  accomplishment  ?  A  neutral  may 
give  some  other  compensation  for  the  privilege  of  transporting  enemy 
goods  in  safety,  or  both  parties  may  find  an  interest  in  stipulating  for 
this  privilege,  and  neither  may  be  disposed  to  make  to,  or  require 
from,  the  other  the  surrender  of  any  right  as  its  consideration.  What 
shall  restrain  independent  nations  from  making  such  a  compact?  And 
how  is  their  intention  to  be  communicated  to  each  other  or  to  the 
world  so  properly  as  by  the  compact  itself  ? 

If  reason  can  furnish  no  evidence  of  the  indissolubility  of  the  two 
maxims,  the  supporters  of  that  proposition  will  certainl}'  derive  no 
aid  from  the  history  of  their  progress  from  the  first  attempts  at  their 
introduction  to  the  present  moment. 

For  a  considerable  length  of  time  they  were  the  companions  of  each 
other  —  not  as  one  maxim  consisting  of  a  single  indivisible  principle, 
but  as  two  stipulations,  the  one,  in  the  view  of  the  parties,  forming  a 
natural  and  obvious  consideration  for  the  other.  The  celebrated  com- 
pact termed  the  armed  neutrality  attempted  to  effect  by  force  a  great 
revolution  in  the  law  of  nations.  The  attempt  failed,  but  it  made  a 
deep  and  lasting  impression  on  public  sentiment.  The  character  of 
this  effort  has  been  accurately  stated  by  the  counsel  for  the  claimants. 
Its  object  was  to  enlarge,  and  not  in  any  thing  to  diminish  the  rights 
of  neutrals.  The  great  powers,  parties  to  this  agreement,  contended 
for  the  principle,  that  free  ships  should  make  free  goods;  but  not  for 
the  converse  maxim;  so  far  were  they  from  supposing  tlie  one  to 
follow  as  a  corollary  from  the  other,  that  the  contrary  opinion  was 
openly  and  distinctly  avowed.  The  King  of  Prussia  declared  his  ex- 
pectation that  in  future  neutral  bottoms  would  protect  the  goods  of 
an  enemy,  and  that  neutral  goods  would  be  safe  in  an  enemy  bottom. 
There  is  no  reason  to  believe  that  this  opinion  was  not  common  to 
tliose  powers  who  acceded  to  the  principles  of  the  armed  neutrality. 

From  that  epoch  to  the'  present,  in  the  various  treaties  which  have 
been  formed,  some  contain  no  article  on  the  subject  and  consequently 


CHAP.  III.]  THE    "  NEREIDE."  887 

leave  the  ancient  rule  in  full  force.  Some  stipulate  that  the  cliar- 
acter  of  the  cargo  shall  depend  upon  the  flag,  some  that  the  neutral 
flag  shall  protect  the  goods  of  an  enemy,  some  that  the  goods  of  a 
neutral  in  the  vessel  of  a  friend  shall  be  prize  of  war,  and  some  that 
the  goods  of  an  enemy  in  a  neutral  bottom  shall  be  safe,  and  that 
friendly  goods  in  the  bottom  of  an  enemy  shall  also  be  safe. 

This  review  which  was  taken  with  minute  accuracy  at  the  bar,  cer- 
tainly demonstrates  that  in  public  opinion  no  two  principles  are  more 
distinct  and  independent  of  each  other  than  the  two  which  have  been 
contended  to  be  inseparable. 

Do  the  United  States  understand  this  subject  differently  from  other 
nations  ?  It  is  certainly  not  from  our  treaties  that  this  opinion  can 
be  sustained.  The  United  States  have  in  some  treaties  stipulated  for 
both  principles,  in  some  for  one  of  them  only,  in  some  that  neutral 
bottoms  shall  make  neutral  goods  and  that  friendly  goods  shall  be 
safe  in  the  bottom  of  an  enemy.  It  is  therefore  clearly  understood 
in  the  United  States,  so  far  as  an  opinion  can  be  formed  on  their 
tre  ities,  that  the  one  principle  is  totally  independent  of  the  other. 
They  have  stipulated  expressly  for  their  separation,  and  they  have 
sometimes  stipulated  for  the  one  without  the  other. 

But  in  a  correspondence  between  the  Secretary  of  State  of  the 
United  States  and  the  jNIinister  of  the  French  Republic  in  1793, 
Prussia  is  enumerated  among  those  nations  with  whom  the  United 
States  had  made  a  treaty  adopting  the  entire  principle  that  the  char- 
acter of  the  cargo  should  be  determined  by  the  character  of  the  flag. 

Not  being  in  possession  of  this  correspondence  the  court  is  unable 
to  examine  the  construction  it  has  received.  It  has  not  deferred  this 
opinion  on  that  accouiit,  because  the  point  in  controversy  at  that  time 
was  the  obligation  imposed  on  the  United  States  to  protect  belligerent 
property  in  their  vessels,  not  the  liability  of  their  property  to  capture 
if  found  in  the  vessel  of  a  belligerent.  To  this  point  the  whole 
attention  of  the  writer  was  directed,  and  it  is  not  wonderful  that  in 
mentioning  incidentally  the  treaty  with  Prussia  which  contains  the 
principle  that  free  bottoms  make  free  goods,  it  should  have  escaped 
his  recollection  that  it  did  not  contain  the  converse  of  the  maxim. 
On  the  talents  and  virtues  which  adorned  the  cabinet  of  that  daj',  on 
the  patient  fortitude  with  which  it  resisted  the  intemperate  violence 
with  which  it  was  assailed,  on  the  firmness  with  which  it  maintained 
those  principles  which  its  sense  of  duty  prescribed,  on  the  wisdom  of 
the  rules  it  adopted,  no  panegyric  has  been  pronounced  at  the  bar  in 
which  the  best  judgment  of  this  court  does  not  concur,  liut  this 
respectful  deference  may  well  comport  with  the  opinion,  that  an 
argument  incidentally  brought  forward  by  way  of  illustration,  is  not 


888  BELLIGERENTS    AND   NEUTRALS.  [PART  II. 

such  full  authority  as  a  decision  directly  on  the  point  might  have 
been. 

3.  The  third  point  made  by  the  captors  is,  that  whatever  con- 
struction might  be  put  on  our  treaty  with  Spain,  considered  as  an 
independent  measure,  the  ordinances  of  that  government  would  sub- 
ject American  property,  under  similar  circumstances,  to  confiscation, 
and  therefore  the  property,  claimed  by  Spanish  subjects  in  this  case, 
ought  to  be  condemned  as  prize  of  war. 

The  ordinances  themselves  have  not  been  produced,  nor  has  the 
court  received  such  information  respecting  them  as  would  enable  it 
to  decide  certainly  either  on  their  permanent  existence,  or  on  their 
application  to  the  United  States.  But  be  this  as  it  may,  the  court  is 
decidedly  of  opinion  that  reciprocating  to  the  subjects  of  a  nation,  or 
retaliating  on  them,  its  unjust  proceedings  towards  our  citizens,  is  a 
political  not  a  legal  measure.  It  is  for  the  consideration  of  the  gov- 
ernment not  of  its  courts.  The  degree  and  the  kind  of  retaliation 
depend  entirely  on  considerations  foreign  to  this  tribunal.  It  may 
be  the  policy  of  the  nation  to  avenge  its  wrongs  in  a  manner  having 
no  affinity  to  the  injury  sustained,  or  it  may  be  its  policy  to  recede 
from  its  full  rights  and  not  to  avenge  them  at  all.  It  is  not  for  its 
courts  to  interfere  with  the  proceedings  of  the  nation  and  to  tliAvart 
its  views.  It  is  not  for  us  to  depart  from  the  beaten  track  prescribed 
for  us,  and  to  tread  the  devious  and  intricate  path  of  politics.  Even 
in  the  case  of  salvage,  a  case  peculiarly  within  the  discretion  of 
coiirts,  because  no  fixed  rule  is  prescribed  by  the  law  of  nations,  Con- 
gress has  not  left  it  to  this  department  to  say  whether  the  rule  of 
foreign  nations  shall  be  applied  to  them,  but  has  by  law  applied  that 
rule.  If  it  be  the  will  of  the  government  to  apply  to  Spain  any  rule 
'respecting  captures  which  Spain  is  supposed  to  apply  to  us,  the  gov- 
ernment will  manifest  that  will  by  passing  an  act  for  the  purpose. 
Till  such  an  act  be  passed,  the  court  is  bound  by  the  law  of  nations 
'  which  is  a  part  of  the  law  of  the  land. 

Thus  far  the  opinion  of  the  court  has  been  formed  without  much 
difficulty.  Although  the  principles,  asserted  by  the  counsel,  have 
been  sustained  on  both  sides  with  great  strength  of  argument,  they 
have  been  found  on  examination  to  be  simple  and  clear  in  themselves. 
Stripped  of  the  imposing  garb  in  which  they  have  been  presented  to 
the  court,  they  have  no  intrinsic  intricacy  v/hich  should  i)erplex  the 
understanding. 

The  remaining  point  is  of  a  different  character.  Belligerent  rights 
and  neutral  privileges  are  set  in  array  against  each  other.  Their 
respective  pretensions,  if  not  actually  intermixed,  come  into  close 
contact,  and  the  line  of  partition  is  not  so  distinctly  marked  as  to  be 


CHAP,  in.]  THE    "  NEREIDE."  889 

clearly  discernible.  It  is  impossible  to  declare  in  favor  of  either, 
without  hearing,  from  the  other,  objections  which  it  is  ditficult  to 
answer  and  arguments  which  it  is  not  easy  to  refute.  The  court  has 
given  to  this  subject  a  patient  investigation,  and  has  endeavored  to 
avail  itself  of  all  tlie  aid  which  has  been  furnished  by  the  bar.  The 
result,  if  not  completely  satisfactory  even  to  ourselves,  is  one  from 
which  it  is  believed  we  should  not  depart  were  further  time  allowed 
for  deliberation. 

4.  Has  the  conduct  of  }.[anuel  Pinto  and  of  the  Nereide  been  such 
as  to  impress  the  hostile  character  on  that  part  of  the  cargo  which 
was  in  fact  neutral? 

In  considering  this  question  the  court  has  examined  separately  the 
parts  which  compose  it. 

The  vessel  was  armed,  was  the  property  of  an  enemy,  and  m;ide 
resistance.     How  do  these  facts  affect  the  claim? 

Had  the  vessel  been  armed  by  Pinto,  that  fact  would  certainly  have 
constituted  an  important  feature  in  the  case.  But  the  court  can  per- 
ceive no  reason  for  believing  she  was  armed  by  him.  He  chartered, 
it  is  true,  the  whole  vessel,  and  that  he  might  as  rightfully  do  as 
contract  for  her  partially;  but  there  is  no  reason  to  believe  that  he 
was  instrumental  in  arming  her.  The  owner  stipulates  that  the 
Xereide  "well  manned,  victualled,  equipped,  provided,  and  furnished 
with  all  things  needful  for  such  a  vessel,"  shall  be  ready  to  take  on 
board  a  cargo  to  be  provided  for  her.  The  Nereide,  then,  was  to  be 
put,  by  the  owner,  in  the  condition  in  which  she  was  to  sail.  In 
equipping  her,  whether  with  or  without  arms,  Mr.  Pinto  was  not 
concerned.  It  appears  to  have  been  entirely  and  exclusively  the  act 
of  the  belligerent  owner. 

Whether  the  resistance,  which  was  actually  made,  is  in  any  degree 
imputable  to  Mr.  Pinto,  is  a  question  of  still  more  importance. 

It  has  been  argued  that  he  had  the  whole  ship,  and  that,  therefore, 
the  resistance  was  his  resistance. 

The  whole  evidence  upon  this  point  is  to  be  found  in  the  charter 
party,  in  the  letter  of  instructions  to  the  master,  and  in  the  answer  of 
Pinto  to  one  of  the  interrogatories  in  preparatorio. 

The  charter  party  evinces  throughout  that  the  ship  remained  under 
the  entire  direction  of  the  owner,  and  that  Pinto  in  no  degree  partici- 
pated in  the  command  of  her.  The  owner  appoints  the  master  and 
stipulates  for  every  act  to  be  performed  by  the  ship,  from  the  date 
of  the  charter  party  to  the  termination  of  the  voyage.  In  no  one 
respect,  except  in  lading  the  vessel,  was  Pinto  to  have  any  direction 
of  her. 

The  letter  of  instructions  to  the  master  contains  full  directions  for 


890  BELLIGERENTS    AND    NEUTRALS.  [PART  11. 

the  regulation  of  his  conduct,  without  any  other  reference  to  Mr. 
Pinto  than  has  been  already  stated.  That  reference  shows  a  positive 
lituitation  of  his  power  by  the  terms  of  the  charter  party.  Conse- 
quently he  had  no  share  in  the  government  of  the  ship. 

But  Pinto  says  in  his  answer  to  the  Gth  interrogatory  that  ''he  had 
control  of  the  said  ship  and  cargo." 

Nothing  can  be  more  obvious  than  that  Pinto  could  understand 
himself  as  saying  no  more  than  that  he  had  the  control  of  the  ship 
and  cargo  so  far  as  respected  her  lading.  A  part  of  the  cargo  did  not 
belong  to  him,  and  was  not  consigned  to  him.  His  control  over  the 
ship  began  and  ended  with  putting  the  cargo  on  board.  He  does  not 
appear  ever  to  have  exercised  any  authority  in  the  management  of 
the  ship.  So  far  from  exercising  any  during  the  battle,  he  went  into 
the  cabin,  where  he  remained  till  the  conflict  was  over.  It  is.  then, 
most  apparent  that  when  Pinto  said  he  had  the  control  of  the  ship 
and  cargo,  he  used  those  terms  in  a  limited  sense.  He  used  them  in 
reference  to  the  power  of  lading  her,  given  him  by  the  charter  party. 

If,  in  this,  the  court  be  correct,  this  cause  is  to  be  governed  by  the 
principles  which  would  apply  to  it  had  the  Xereide  been  a  general 
ship. 

The  next  point  to  be  considered  is  the  right  of  a  neutral  to  place 
his  goods  on  board  an  armed  belligerent  merchantman. 

That  a  neutral  may  lawfully  put  his  goods  on  board  a  belligerent 
ship  for  conveyance  on  the  ocean,  is  universally  recognized  as  the 
original  rule  of  the  law  of  nations.  It  is,  as  has  already  been  stated, 
founded  on  the  plain  and  simple  principle  that  the  property  of  a 
friend  remains  his  property  wherever  it  may  be  found.  "  Since  it  is 
not,"  says  Vattel,  "the  place  where  a  thing  is  which  determines  the 
nature  of  that  thing,  but  the  character  of  the  person  to  Avhom  it 
belongs,  things  belonging  to  neutral  persons  which  happen  to  be  in 
an  enemy's  country,  or  on  board  an  enemy's  ships,  are  to  be  distin- 
guished from  those  which  belong  to  the  enemy." 

Bynkershoek  lays  down  the  same  principles  in  terms  equally 
explicit;  and  in  terms  entitled  to  the  more  consideration,  because  he 
enters  into  the  inquiry  whether  a  knowledge  of  the  hostile  character 
of  the  vessel  can  effect  the  owner  of  the  goods. 

The  same  principle  is  laid  down  by  other  writers  on  the  same  sub- 
ject, and  is  believed  to  be  contradicted  by  none.  It  is  true  tliere 
were  some  old  ordinances  of  France  declaring  that  a  hostile  vessel  or 
cargo  should  expose  both  to  condemnation.  But  these  ordinances 
have  never  constituted  a  rule  of  public  law. 

It  is  deemed  of  much  importance  that  the  rule  is  universally  laid 
down  in  terms  which  comprehend  an  armed  as  well  as  an  unarmed 


CHAP.  III.]  THE   "  NEREIDE."  891 

vessel;  and  that  armed  vessels  have  never  been  excepted  from  it. 
Byukershoek,  in  discussing  a  question  suggesting  an  exception,  with 
his  mind  directed  to  hostilities,  does  not  hint  that  this  privilege  is 
confined  to  unarmed  merchantmen. 

In  point  of  fact,  it  is  believed  that  a  belligerent  merchant  vessel 
rarely  sails  unarmed,  so  that  this  exception  from  the  rule  would  be 
greater  than  the  rule  itself.  At  all  events,  the  number  of  those  who 
are  armed  and  who  sail  under  convw,  is  too  great  not  to  have  at- 
tracted the  attention  of  writers  on  public  law;  and  this  exception  to 
their  broad  general  rule,  if  it  existed,  would  certainly  be  found  in 
some  of  their  works.  It  would  be  strange  if  a  rule  laid  down,  with 
a  view  to  war,  in  such  broad  terms  as  to  have  universal  application, 
should  be  so  construed  as  to  exclude  from  its  operation  almost  every 
case  for  which  it  purports  to  provide,  and  yet  that  not  a  dictum  should 
be  found  in  the  books  pointing  to  such  construction. 

The  antiquity  of  the  rule  is  certainly  not  unworthy  of  considera- 
tion. It  is  to  be  traced  back  to  the  time  Avhen  almost  every  mer- 
chantman was  in  a  condition  for  self-defence,  and  the  implements  of 
war  were  so  light  and  so  cheap  that  scarcely  any  would  sail  without 
them. 

A  belligerent  has  a  perfect  right  to  arm  in  his  own  defence;  and  a 
neutral  has  a  perfect  right  to  transport  his  goods  in  a  belligerent 
vessel.  These  rights  do  not  interfere  with  each  other.  The  neutral 
has  no  control  over  the  belligerent  right  to  arm  —  ought  he  to  be 
accountable  for  the  exercise  of  it  ? 

By  placing  neutral  property  in  a  belligerent  ship,  that  property, 
according  to  the  positive  rules  of  law,  does  not  cease  to  be  neutral. 
Why  should  it  be  changed  by  the  exercise  of  a  belligerent  right, 
universally  acknowledged  and  in  common  use  when  the  rule  was  laid 
down,  and  over  which  the  neutral  had  no  control? 

The  belligerent  answers,  that  by  arming  his  rights  are  impaired. 
By  placing  his  goods  under  the  guns  of  an  enemy,  the  neutral  has 
taken  part  with  the  enemy  and  assumed  the  hostile  chai-acter. 

Previous  to  that  examination  which  the  court  has  been  able  to 
make  of  the  reasoning  by  which  this  proposition  is  sustained,  one 
remark  will  be  made  which  applies  to  a  great  part  of  it.  The  argu- 
ment which;  taken  in  its  fair  sense,  would  prove  that  it  is  unlawful 
to  deposit  goods  for  transportation  in  the  vessel  of  an  enemy  gen- 
erally, however  imposing  its  form,  must  be  unsound,  because  it  is 
in  contradiction  to  acknowledged  law. 

It  is  said  that  by  depositing  goods  on  board  an  armed  belligerent 
the  right  of  search  may  be  impaired,  perhaps  defeated. 

"What  is  this  right  of  search?     Is  it  a  substantive  and  independent 


892  BELLIGERENTS    AND   NEUTRALS.  [PART  II. 

right  wantonly,  and  in  the  pride  of  power,  to  vex  and  harass  neutral 
commerce,  because  there  is  a  capacity  to  do  so?  or  to  indulge  the  idle 
and  mischievous  curiosity  of  looking  into  neutral  trade?  or  the  as- 
sumption of  a  right  to  control  it?  If  it  be  such  a  substantive  and 
independent  right,  it  would  be  better  that  cargoes  should  be  inspected 
in  port  before  the  sailing  of  the  vessel,  or  that  belligerent  licenses 
should  be  procured.     But  this  is  not  its  character. 

Belligerents  have  a  full  and  perfect  right  to  capture  enemy  goods 
and  articles  going  to  their  enemy  which  are  contraband  of  war.  To 
the  exercise  of  that  right  the  right  of  search  is  essential.  It  is  a 
mean  justified  by  the  end.  It  has  been  truly  denominated  a  right 
growing  out  of,  and  ancillary  to  the  greater  right  of  capture.  Where 
tliis  greater  right  may  be  legally  exercised  without  search,  the  right 
of  search  can  never  arise  or  come  into  question. 

But  it  is  said  that  the  exercise  of  this  right  may  be  prevented  by 
the  inability  of  the  party  claiming  it  to  capture  the  belligerent  carrier 
of  neutral  property. 

And  what  injury  results  from  this  circumstance?  If  the  property 
be  neutral,  what  mischief  is  done  by  its  escaping  a  search.  In  so 
doing  there  is  no  sin  even  as  against  the  belligerent,  if  it  can  be 
effected  by  lawful  means.  The  neutral  cannot  justify  the  use  of 
force  or  fraud,  but  if  by  means,  lawful  in  themselves,  he  can  escape 
this  vexatious  procedure,  he  may  certainly  employ  them. 

To  the  argument  that  by  placing  his  goods  in  tlie  vessel  of  an 
armed  enemy,  he  connects  himself  with  that  enemy  and  assumes  the 
hostile  character,   it  is  answered  that  no  such  connection  exists. 

The  object  of  the  neutral  is  the  transportation  of  his  goods.  His 
connection  with  the  vessel  which  transports  them  is  the  sanie,  Avhether 
that  vessel  be  armed  or  unarmed.  The  act  of  arming  is  not  his  —  it 
is  the  act  of  a  party  who  has  a  right  so  to  do.  He  meddles  not  with 
the  armament  nor  with  the  war.  Whether  his  goods  were  on  board 
or  not,  the  vessel  would  be  armed  and  would  sail.  His  goods  do  not 
contribute  to  the  armament  further  than  the  freight  he  pays,  and 
freight  he  would  pay  were  the  vessel  unarmed. 

It  is  difficult  to  perceive  in  tliis  argument  anything  which  does  not 
also  apply  to  an  unarmed  vessel.  In  both  instances  it  is  the  right 
and  the  duty  of  the  carrier  to  avoid  ca})ture  and  to  prevent  a  search. 
There  is  no  difference  except  in  the  degree  of  capacity  to  carry  this 
duty  into  effect.  The  argument  would  operate  against  the  rule  which 
permits  the  neutral  merchant  to  employ  a  belligerent  vessel  without 
imparting  to  his  goods  the  belligerent  character. 

The  argument  respecting  resistance  stands  on  the  same  ground  with 
that  which  respects  arjuing.     Both  are  lawful.     Neither  of  them  is 


CHAP  ni.]  THE   "  NEREIDE."  893 

chargeable  to  the  goods  or  their  owner,  where  he  has  taken  no  part 
in  it.  They  are  incidents  to  the  character  of  the  vessel;  and  may 
always  occur  where  the  carrier  is  belligerent. 

It  is  remark  ible  that  no  express  authority  on  either  side  of  this 
question  can  be  found  in  the  books,  A  few  scanty  materials,  made 
up  of  inferences  from  cases  depending  on  other  principles,  have  been 
gleaned  from  the  books  and  employed  by  both  parties.  They  are 
certainly  not  decisive  for  or  against  either. 

The  celebrated  case  of  the  Swedish  convoy  has  been  pressed  into 
the  service.  But  that  case  decided  no  more  than  this_,  that  a  neutral 
may  arm,  but  cannot  by  force  resist  a  search.  The  reasoning  of  the 
judge  on  that  occasion  would  seem  to  iiidicate  that  the  resistance 
condemned  the  cargo,  because  it  was  unlawful.  It  has  been  inferred 
on  the  one  side  that  the  goods  would  be  infected  by  the  resistance  of 
the  ship,  and  on  the  other  that  a  resistance  wliich  is  lawful,  and  is 
not  produced  by  the  goods,  will  not  change  their  character. 

The  case  of  the  Catharine  Elizabeth  approaches  more  nearly  to  that 
of  the  Nereide,  because  in  that  case  as  in  this  there  were  neutral 
goods  and  a  belligerent  vessel.  It  was  certainly  a  case,  not  of  resist- 
ance, but  of  an  attempt  by  a  part  of  the  crew  to  seize  the  capturing 
vessel.  Between  such  an  attempt  and  an  attempt  to  take  the  same 
vessel  previous  to  capture,  there  does  not  seem  to  be  a  total  dissimili- 
tude. But  it  is  the  reasoning  of  the  judge  and  not  his  decision,  of 
which  the  claimants  would  avail  themselves.  He  distinguishes 
between  the  effect  which  the  employment  of  force  by  a  belligerent 
owner  or  by  a  neutral  owner  would  have  on  neutral  goods.  The  first 
is  lawful,  the  last  unlawful.  The  belligerent  owner  violates  no  duty. 
He  is  held  by  force  and  may  escape  if  he  can.  From  the  marginal 
note  it  appears  that  the  reporter  understood  this  case  to  decide  in 
principle  that  resistance  by  a  belligerent  vessel  would  not  confiscate 
the  cargo.  It  is  only  in  a  case  without  express  authority  that  such 
materials  can  be  relied  on. 

If  the  neutral  character  of  the  goods  is  forfeited  by  the  resistance 
of  the  belligerent  vessel,  why  is  not  the  neutral  character  of  the 
passengers  forfeited  by  the  same  cause?  The  master  and  crew  are 
prisoners  of  war,  why  are  not  those  passengers  who  did  not  engage 
in  the  conflict  also  prisoners?  That  they  are  not  would  seem  to  the 
court  to  afford  a  strong  argument  in  favor  of  the  goods.  The  law 
would  operate  in  the  same  manner  on  both. 

It  cannot  escape  observation  that  in  argument  the  neutral  freighter 
has  been  continually  represented  as  arming  the  Nereide  and  imj.elling 
her  to  hostility.  He  is  represented  as  drawing  forth  and  guiding  her 
warlike  energies.     The  court  does  not  so  understand  the  case.     The 


894  BELLIGERENTS    AND   NEUTRALS,  [PART  IL 

Nereide  was  armed,  governed,  and  conducted  by  belligerents.  With 
her  force,  or  her  conduct,  the  neutral  sliippers  had  no  concern.  They 
deposited  their  goods  on  board  the  vessel,  and  stipulated  for  their 
direct  transportation  to  Buenos  Ayres.  It  is  true  that  on  her  passage 
she  had  a  right  to  defend  herself,  did  defend  herself,  and  might  have 
captured  an  assailing  vessel;  but  to  search  for  the  enemy  would  have 
been  a  violation  of  the  charter  party  and  of  her  duty. 

With  a  pencil  dipped  in  the  most  vivid  colors,  and  guided  by  the 
hand  of  a  master,  a  splendid  portrait  has  been  drawn  exhibiting  this 
vessel  and  her  freighter  as  forming  a  single  figure,  composed  of  the 
most  discordant  materials,  of  peace  and  war.  So  exquisite  was  the 
skill  of  the  artist,  so  dazzling  the  garb  in  which  the  figure  was  pre- 
sented, that  it  required  the  exercise  of  that  cold  investigating  faculty 
which  ought  always  to  belong  to  those  Avho  sit  on  this  bench,  to  dis- 
cover its  onl}'  imperfection ;  its  want  of  resemblance. 

The  Nereide  has  not  that  centaur-like  appearance  which  has  been 
ascribed  to  her.  She  does  not  rove  over  the  ocean  hurling  the 
thunders  of  war  while  sheltered  by  the  olive  branch  of  peace.  She 
is  not  composed  in  part  of  the  neutral  character  of  ISIr.  Pinto,  and 
in  part  of  the  hostile  character  of  her  owner.  She  is  an  open  and 
declared  belligerent;  claiming  all  the  rights,  and  subject  to  all  the 
dangers  of  the  belligerent  character.  She  conveys  neutral  property 
which  does  not  engage  in  her  warlike  equipments,  or  in  any  employ- 
ment she  may  make  of  them;  which  is  put  on  board  solely  for  the 
purpose  of  transportation,  and  which  encounters  the  hazard  incident 
to  its  situation ;  the  hazard  of  being  taken  into  port,  and  obliged  to 
seek  another  conveyance  should  its  carrier  be  captured. 

In  this  it  is  the  opinion  of  the  majority  of  the  court  there  is  noth- 
ing unlawful.  The  characters  of  the  vessel  and  cargo  remain  as 
distinct  in  this  as  in  any  other  case.  The  sentence,  therefore,  of  the 
Circuit  Court  must  be  reversed,  and  the  property  claimed  by  Manuel 
Pinto  for  himself  and  his  partners,  and  for  those  other  Spaniards  for 
whom  he  has  claimed,  be  restored,  and  the  libel  as  to  that  property, 
be  dismissed.^ 

1  Tlie  concurring  opinion  of  Johnsox,  J.,  and  the  dissenting  opinion  of  Story,  J., 
omitted.  See  TIte  Fanni/,  1814,  1  Dod.  443,  for  a  contemporaneous  decision  of  an 
opposite  character,  and  note  Kent's  comment  on  these  two  cases,  in  1  Com.  13*2-133. 

In  the  subsequent  case  of  77(e  Atalanta,  1818,  3  Wheat.  409,  C.  J.  Marshall,  in 
delivering  the  opinion  of  the  court,  said:  "On  the  first  question,  the  case  does  not 
essentially  differ  from  that  of  the  Nereide.  It  is  unnecessary  to  repeat  the  reasoning 
on  \vlii';h  that  case  was  decided.  The  opinion  then  given  by  three  judges  is  retained 
by  tlicin.  The  principle  of  the  law  of  nations,  that  the  goods  of  a  friend  are  safe  in 
the  bottom  of  an  enemy,  may  be,  and  j)robably  will  be  changed,  or  so  impaired  as  to 
leave  no  object  to  which  it  is  applicable  ;  but  so  long  as  the  principle  shall  be  acknow- 


CHAP.  III.]  THE  *'  ATLAS."  895 

THE   ''ATLAS." 

High  Court  of  Admiralty,  1801. 

(3  C.  Robinson,  243.) 

This  was  a  case  of  an  American  ship  and  cargo  of  tobacco,  claimed 
for  merchants  in  America.  Tlie  cargo  had  been  sent  originally  from 
America  to  Vigo,  or  a  market,  consigned  to  the  master  for  sale ;  at 
Vigo  it  was  sold  to  the  administration  of  the  revenue  of  tobacco, 
under  a  contract  of  the  master  to  deliver  it  at  Seville,  at  his  own  risk, 
and  there  to  receive  payment.  The  ship  was  taken  in  the  voyage 
from  Vigo  to  Seville. 

Court:  —  I  do  not  see  how  this  case  can  be  distinguished  from  the 
case  cited  before  the  lords;  I  think  I  am  bound  to  pronounce  this 
cargo  liable  to  condemnation,  on  the  ground,  that  it  is  taken  whilst 
going  to  an  enemy's  port,  to  be  delivered  there  to  an  enemy,  and  to 
be  paid  for  by  him,  having  actually  become  his  property,  under  an 
engagement  to  that  effect,  entered  into  by  the  person  who  is  the 
appointed  agent  for  the  management  of  the  cargo.  It  came  from 
America  as  American  property,  but  it  was  sold  at  Vigo  to  the  Spanish 
Government,  and  went  from  thence  to  Seville  as  Spanish  property; 
the  contract  under  which  it  went  was  absolute  and  indefeasible:  The 
goods  can  be  considered  in  no  other  light  than  as  the  property  of  an 
enemy. 

Cargo  condemned.  Ship  restored.  Freight  refused  as  on  a  voy- 
age in  the  coasting  trade  of  the  enemy. ^ 

ledged,  tliis  court  must  reject  constructions  which  render  it  totally  inoperative." 
p.  415.  For  the  reason  of  the  thing,  see  the  instructive  and  argumentative  concurring 
opinion  of  Mr.  Justice  Johnson,  pp.  410-433.  —  Ed. 

1  To  the  same  effect  the  Salt;/,  1795,  in  note  to  the  Atlas,  ut  sup. 

Where  enemy's  property  is  fraudulently  blended  in  the  same  claim  with  the  neutral 
property  the  latter  is  liable  to  share  the  fate  of  the  former.  The  St.  Nicholas,  1816, 
1  Wheat.  417. 

See  also  The  Eenrom,  1799,  2  C.  Rob.  1;  The  Cah/pso, 1799,  2  C.  Rob.  154;  The  Susa, 
1799,  2  C.  Rob.  251;  The  Graaf  Bernstorf,  1800,  3  C.  Rob.  109;  The  Betsy,  1815,  2 
Gall.  377;  The  Dos  Hermams,  1817,  2 '  Wheat.  76;  The  Fortuna,  1818,  3  Wheat. 
236.  — Ed. 


896  BELLIGERENTS   AND   NEUTRALS.  [PART  n. 

DAKBY   et  al.  v.    THE   BKIG   "ERSTERN." 
Fedekal  Court  of  Appeals,  1782. 

(2  Dallas,  34.) 

This  was  an  appeal  from  the  Admiralty  of  the  State  of  IMassachu- 
setts  Bay,  where  the  brig  and  her  cargo  had  been  acquitted.  The 
case  was  argued  on  the  28th,  29th  and  30th  of  January;  and,  on  the 
5th  Feb.,  1782,  the  definitive  sentence  of  the  court  was  pronounced 
by  Paca  and  Griffin,  the  presiding  commissioners,  in  the  following 
terms : 

By  the  Court:  —  Upon  the  evidence  in  this  case,  we  are  of  opinion, 
that  the  brig,  at  the  time  of  her  capture,  was  the  property  of  imperial 
subjects  at  Ostend,  and  that  the  cargo  was  British  property,  unpro- 
tected by  the  capitulation  of  Dominica. 

It  is  objected,  ''The  brig  is  not  prize,  because  neutral  property." 

Neutral  property  cannot  be  captured :  For,  while  the  character  of 
neutrality  is  preserved,  such  property  is  the  property  of  a  friend,  on 
which  the  rights  of  Avar  cannot  attach;  but  the  owners  of  a  ship  may 
violate  their  neutrality,  by  taking  a  decided  part  with  the  enemy:  In 
what  light  is  such  a  ship  then  to  be  considered,  and  what  is  to  be 
done  witli  her?  The  law  of  nations  says,  that  a  ship  under  those 
circumstances,  is  in  the  predicament  of  enemy's  property,  and  subject 
to  seizure  and  confiscation. 

But  it  is  said,  "the  ordinance  of  Congress  ascertains  in  what  cases 
the  rights  of  neutrality  are  forfeited;  that  the  present  case  is  not 
comprehended;  and  therefore,  if  not  protected  by  the  law  of  nations, 
yet  it  is  protected  by  the  ordinance  of  Congress." 

We  are  of  opinion,  that  Congress  did  not  mean,  by  their  ordinance, 
to  ascertain  in  what  cases  the  rights  of  neutrality  should  be  forfeited, 
in  exclusion  of  all  other  cases;  for,  the  instances  not  mentioned  are 
as  flagrant  as  the  cases  particularized.  The  ordinance  does  not 
specify  the  cg,se  of  a  neutral  vessel  employed  in  carrying  provision 
to  a  place  which  is  besieged,  and  in  want  of  bread:  for,  although  one 
of  the  articles  says,  "You  shall  permit  all  neutral  vessels  freely 
to  navigate  on  the  high  seas,  or  the  coasts  of  America,  except  such 
as  are  employed  in  carrying  contraband  goods,  or  soldiers,  to  the 
enemy;"  yet  anotlier  article  says,  that  the  term  contraband  shall  be 
confined  to  the  articles  there  enumerated,  and  provision  is  omitted. 
Were  Congress  asked,   whether  they  meant  to  protect  from  capture 


CHAP.  III.]  DARBY  V.    THE  BRIG   "  ERSTERN."  897 

a  neutral  ship  loaded  with  provision,  and  destined  for  York  and 
Gloucester,  when  besieged  by  the  armies  of  the  United  States  and 
France,  no  one  could  possibly  doubt  what  their  answer  would  be. 
The  plain  and  obvious  construction  of  the  ordinance  is,  that  while 
neutral  vessels  observe  the  rights  of  neutrality,  they  shall  not  be 
interrupted  by  American  captures:  Congress  meant  to  pay  a  regard 
to  the  rights,  and  not  to  the  violations  of  neutrality. 

r>ut,  it  is  objected,  "that  in  this  case,  if  the  brig  has  violated  the 
rights  of  neutrality,  it  is  because  she  intended  a  violation  of  the 
capitulation  of  Dominica;  that  tlie  capitulation  of  Dominica  can  only 
bo  considered  as  a  local  law,  of  which  there  can  be  no  breach,  until 
the  offending  ship  comes  within  the  civil  jurisdiction  of  the  island; 
that  the  brig  was  captured  before  the  arrival  within  the  jurisdiction 
of  Dominica;  and  that  therefore  she  was  captured  before  there  was 
any  violation  of  the  rights  of  neutral  it}-." 

If  nothing  could  be  objected  against  the  brig,  but  an  intentional 
violation  of  the  capitulation,  abstractedly  from  the  consequences, 
with  regard  to  the  war  between  Great  Britain,  France,  and  the 
United  States,  possibly  such  reasoning  might  be  conclusive:  but  we 
are  of  opinion,  that  the  brig  has  done  more  than  a  mere  intentional 
offence,  with  regard  to  the  capitulation. 

The  subjects  of  a  neutral  nation  cannot,  consistently  with  neu- 
trality, combine  with  British  subjects  to  wrest  out  of  the  hands  of 
the  United  States  and  of  France  the  advantages  they  have  acquired 
over  Great  Britain  by  the  rights  of  war;  for  this  would  be  taking  a 
decided  part  with  the  enemy. 

On  the  conquest  of  Dominica  a  capitulation  took  place,  and  by  that 
capitulation,  a  commercial  intercourse  between  Great  Britain  and 
that  island  was  prohibited:  the  object  was  to  weaken  the  power  of 
Great  Britain,  by  lessening  her  naval  and  commercial  resources.  But 
what  has  been  the  conduct  of  the  brig  and  the  imperial  subjects  her 
owners?  Render  Mason,  a  British  subject,  establishes  a  plan  at 
Ostend,  by  which  the  commerce  of  Great  Britain  with  Dominica  is 
to  be  kept  up  and  preserved,  through  the  intervention  of  that  port. 
On  this  plan  Liebert,  Beas,  Dardine,  &  Co.,  imperial  subjects,  pur- 
chase at  London  the  brig  Erstern :  Render  IMason  puts  on  board  a 
cargo  of  British  merchandise,  the  property  of  British  subjects:  the 
brig  clears  out  from  London,  ostensibly  for  Ostend,  and  there  arrives: 
Liebert,  Beas,  Dardine,  &  Co.  supply  her  with  false  and  colorable 
papers,  assume  upon  themselves  the  ownership  of  the  cargo,  and 
dress  it  up  in  the  garb  of  neutrality,  to  screen  it  from  detention  and 
capture:  the  brig  then  clears  out  for  Dominica,  and  sails  for  that 
island  with  the  cargo  she  took  on  board  at  London. 


898  BELLIGERENTS   AND   NEUTRALS.  [PART  11, 

Can  such  conduct  consist  with  neutrality?  Can  there  be  a  more 
flagrant  violation  of  it?  Does  it  not  aim  to  wrest,  from  France  and 
the  United  States,  the  advantages  they  acquired  by  the  conquest  of 
Dominica:  and  does  it  not  evince  a  fraudulent  combination  with 
British  subjects,  and  a  palpable  partiality? 

But,  "  Why  shall  the  rights  of  neutrality  be  broke  by  works  of 
supererogation?  If  the  cargo  was  British  property,  unprotected  by 
the  capitulation,  it  was  then  the  property  of  enemies,  and  as  it  did 
not  consist  of  contraband  articles,  it  was  protected  from  capture  by 
the  ordinance  of  Congress :  the  brig,  therefore,  needed  not  to  employ 
fraud  and  stratagem  to  give  it  the  garb  of  neutrality,  in  order  to 
screen  it  from  capture." 

If  the  offence,  which  the  brig  has  committed,  consisted  in  employ- 
ing fraud  and  stratagem,  merely  to  protect  property  which  belonged 
to  an  enemy,  the  objection  might,  in  consequence  of  the  ordinance  of 
Congress,  be  of  some  force.  But  the  offence  is  not  of  so  limited  a 
nature;  it  is  far  more  extensive,  and  comprehends  a  flagrant  violation 
of  the  rights  of  neutrality :  it  results  from  a  fraudulent  combination 
with  British  subjects,  to  give  weight  and  energy  to  the  arms  of  Great 
Britain,  by  the  re-establishment  of  a  commerce,  and  its  emoluments, 
which  she  had  lost  by  the  conquest  of  Dominica. 

But,  it  is  objected,  "The  cargo  is  not  prize,  because  it  is  not  con- 
traband, and  all  the  other  effects  and  goods,  though  the  property  of  an 
enemy,  are  exempted  from  capture  by  the  ordinance  of  Congress." 

If  the  Erstern  had  been  employed  in  a  fair  commerce,  such  as  was 
consistent  with  the  rights  of  neutrality,  her  cargo,  though  the  prop- 
erty of  an  enemy,  could  not  be  prize;  because  Congress  have  said,  by 
their  ordinance,  that  the  rights  of  neutrality  shall  extend  protection 
to  such  effects  and  goods  of  an  enemy.  But,  if  the  rights  of  neu- 
trality are  violated.  Congress  have  not  said,  that  such  a  violated 
neutrality  shall  give  such  protection :  nor  could  they  have  said  so, 
without  confounding  all  the  distinctions  between  right  and  wrong. 

Upon  the  whole,  we  are  of  opinion,  that  the  decree  below  be  re- 
versed, and  that  the  said  brig  and  cargo  be  condemned,  as  prize,  for 
the  use  of  the  captors,  without  costs. ^ 

1  The  Declaration  of  Paris,  1856.  —  Declaration  respecting  maritime  law,  signed 
by  tlie  plenipotentiaries  of  Great  Britain,  Austria,  France,  Prussia,  Russia,  Sardinia, 
and  Turkey,  assembled  in  Congress  at  Paris,  April  10,  185G. 

'Die  plenipotentinries  wlio  signed  tlie  Treaty  of  Paris  of  tlie  30tli  of  Marcli,  1856, 
assembled  in  conference,  —  Considering: 

Tiiat  Maritime  I-aw,  in  time  of  war,  lias  long  been  llie  subject  of  deplorable  disputes; 

Tliat  tlie  uncertainty  of  tlic  law,  nnd  of  the  duties  in  such  a  matter,  gives  rise  to 
differen(;e8  of  opinion  between  neutrals  and  belligerents  which  may  occasion  eeriouo 
difficulties,  and  even  conflicts; 


CHAP.  lit.]  MILLER   V.    THE    "RESOLUTION"  (1).  899 


Section  48.  —  Prize  Coukts.^ 


jMILLEE   v.    the   "RESOLUTION"  (1). 
Federal  Court  of  Appeals,  1781. 

(2  Ddlias,  1.) 

These  were  appeals  from  the  Admiralty  Court  of  Pennsylvania, 
where  the  ship  had  been  acquitted  and  the  cargo  condemned. 

By  the  Court  [CvRus  GitiFFrN*]:"  —  We  have  considered  tliese 
appeals,  and  are  now  ready  to  give  our  judgment. 

Tliat  it  is  consequent!}'  advantageous  to  establish  a  uniform  doctrine  on  so  im- 
portant a  point; 

Tiiat  the  plenipotentiaries  assembled  in  Congress  at  Paris  cannot  better  respond  to 


^  "In  war  the  capture  of  property  in  the  hands  of  the  enemy,  used  or  intended  to 
be  used  for  hostile  purposes,  is  allowed  by  all  civilized  nations,  and  this  wiietlier  the 
ownership  be  public  or  private.  The  title  to  movable  property  in  hostile  use,  captured 
on  land,  passes  to  the  captor  as  soon  as  the  capture  is  complete ;  that  is  to  saj',  as  soon 
as  the  property  is  reduced  to  possession.  The  absolute  title  to  immovable  public 
property  owned  by  the  enemy  does  not  pass  until  the  war  is  ended  and  peace  restored. 
Tiien,  unless  provision  is  made  to  tlie  contrary  by  the  treaty  of  peace  or  otlierwise, 
the  ownersliip  is  changed  if  the  conquest  is  complete."  Kirk  v.  Li/nd,  1882,  100  U.  S. 
315,  317,  per  Waite,  C.  J. 

"  Treating  the  proceedings  in  the  District  Ci»urt  ns  in  admiraltj',  they  are  without 
validity.     The  admiralty  jurisdiction  of  the  District  Court  extends  only  to  seizures  on  ] 
navigable  waters,  not  to  seizures  on  land.     Tlie  difference  is  important,  as  cases  in  ] 
admiralty  are  tried  without  a  jury,  whilst  in  cases  at  law  the  parties  are  entitled  to  a 
jury,    unless    one   is  waived.       United  Slates  v.   Betsei/,  4  Cranch,   443;     The    Sarah, 
8  Wheat.  301."     U.  S.  v.   Winchester,  1878,  99  U.  S.  372,  374,  per  Field,  J. 

"By  the  law  of  nations,  as  recognized  and  administered  in  this  country,  when  1 
movable  propertj'  in  the  hands  of  the  eneni}-,  used,  or  intended  to  be  used,  for  hostile 
purposes,  is  captured  by  land  forces,  the  title  passes  to  tlie  captors  as  soon  as  they 
have  reduced  the  property  to  firm  possession  ;  but  when  such  property  is  captured  by 
naval  forces,  a  judicial  decree  of  condemnation  is  usually  necessary  to  complete  the 
title  of  captors.  1  Kent,  Com.  102,  110;  Halleck*s  Inlernational  Law,  c.  19,  §7;  c. 
30,  §4;  Kirk  v.  Lynd,  106  U.  S.  315,  317."  Oakes  v.  U.  S.,  1898,  174  U.  S.  778,  786, 
per  Gray,  J.     See  Comvtndore  Sleicari's  Case,  irtfra. 

In  the  case  of  The  Belsei/,  1901,  30  Ct.  CI.  256,  a  case  arising  out  of  the  French 
Spoliation  claims,  the  Court  held,  per  Nott,  C.  J.,  that  the  prize  courts  of  a  belligerent 
nation  in  1800  were  not  bound  to  take  notice  of  a  local  custom  at  variance  with  the 
requirements  of  international  law,  or  to  infer,  in  the  absence  of  an  invoice,  that  the 
cargo  belonged  to  the  owners  of  the  vessel. 

For  cases  involving  the  distribution  of  prize  money,  see  Siran  v.  U.  S.,  1884,  19 
Ct.  CI.  51  (dealing  with  Cushing's  destruction  of  The  Aibemare,  1804) ;  Deuej  v.  U.  S., 
1899,  178  U.  S.  510.  — Ed. 

2  Part  of  the  judgment  is  omitted,  —  Ed. 


900  BELLIGERENTS   AND   NEUTRALS.  [PART  II. 

It  has  been  very  truly  observed,  that  this  appeal  is  a  case  of 
importance,  not  only  with  regard  to  the  subject  in  contest,  but  also 

the  intentions  by  wliich  their  governments  are  animated  than  by  seeking  to  introduce 
into  international  relations  fixed  principles  in  this  respect: 

The  above-mentioned  plenipotentiaries,  being  duly  authorized,  resolved  to  concert 
among  themselves  as  to  the  means  of  attaining  this  object;  and,  having  come  to  an 
agreement,  have  adopted  the  following  solemn  declaration  : 

1.  Privateering  is,  and  remains,  abolished. 

2.  The  neutral  flag  covers  enemy's  goods,  with  the  exception  of  contraband  of  war. 

3.  Neutral  goods,  with  the  exception  of  contraband  of  war,  are  not  liable  to  capture 
under  the  enemy's  flag. 

4.  Blockades,  in  order  to  be  binding,  must  be  effective,  that  is  to  say,  maintained  by 
a  force  sufficient  really  to  prevent  access  to  the  coast  of  tlie  enemy. 

The  governments  of  the  undersigned  plenipotentiaries  engage  to  bring  the  present 
Declaration  to  the  knowledge  of  tlie  states  which  have  not  taken  part  in  the  Congress 
of  Paris,  and  to  invite  them  to  accede  to  it. 

Convinced  that  the  maxims  which  they  now  proclaim  cannot  but  be  received  with 
gratitude  by  the  whole  world,  the  undersigned  plenipotentiaries  doubt  not  that  the 
efforts  of  their  governments  to  obtain  the  general  adoption  thereof  will  be  crowned 
with  full  success.  The  present  declaration  shall  not  be  binding,  except  between  those 
Powers  who  have  acceded,  or  shall  accede  to  it.     Done  at  Paris,  April  16,  1856. 

"But  the  terms  of  the  declaration,"  says  Mr.  Hall,  Int.  Law,  709-710,  "are  not 
strictly  authoritative  law,  and  it  is  therefore  not  yet  superfluous  to  sketch,  though 
more  lightly  than  was  formerly  necessary,  the  history  and  ground  of  the  rival  doctrines 
which  have  been  held  upon  the  two  subjects.  *  *  * 

"Usually  these  subjects  have  been  treated  together,  and  the  verbal  jingle,  'Free 
ships,  free  goods;  enemy  ships,  enemy  goods,'  has  been  thought  to  express  a  necessary 
correlation,  which  has  been  equally  supposed  to  exist  between  the  contrary  doctrines. 
The  l^eclaration  of  Paris,  in  choosing  from  each  system  the  part  most  favorable  to 
neutrals,  has  at  least  restored  their  natural  independence,  to  two  essentially  distinct 
questions  of  law." 

The  United  States,  as  is  well  known,  refused  to  sign  the  declaration  because  private 
property  was  not  freed  from  capture  at  sea,  holding  that  privateers  either  were  or 
might  be  necessary  to  protect  or  destroy  such  commerce  in  the  absence  of  a  power- 
ful navy.  Mexico,  Spain,  the  United  States,  and  Venezuela  refused  to  join  in  the 
declaration,  but  it  is  likewise  common  knowledge  that  Spain  and  the  United  States 
adhered  to  it  by  express  proclamation  in  their  recent  war.  Mr.  Hall  is  therefore 
justified  in  remarking  that  although  "the  freedom  of  enemy's  goods  in  neutral  vessels 
is  not  yet  secured  by  a  unanimous  act,  or  by  a  usage  which  is  in  strictness  binding  on 
all  nations,  there  is  little  probability  of  reversion  to  the  custom  which  was  at  one  time 
universal,  and  which  till  lately  enjoyed  a  superior  authority."     Int.  Law,  p.  717. 

In  his  note  to  the  principal  case,  Mr.  Pitt  Cobbett  says  (in  his  Leading  Cases  on  Inter- 
national Law,  2d.  ed.,  at  p.  209)  :  "  This  case  is  cited  as  illustrating  the  principle  that 
even  when,  by  treaty,  the  neutral  flag  covers  the  goods,  yet  it  must  not  be  made  tie 
medium  of  an  illicit  trade.  This  limitation  is  equally  applicable  under  the  rules  now 
established  by  the  Declaration  of  Paris.  Although  the  neutral  flag  may  cover  hostile 
goods,  this  will  not  warrant  its  being  used  for  the  purpose  of  carrying  on  illicit  traffic." 

Since  the  formal  abolishing  of  privateering,  by  the  Declaration  of  Paris,  supra,  the 
pubjoct  hns  merely  an  historical  interest.  A  few  notes  and  references  are  added.  In 
I/oopnr,  Aflm'r,  v.  U.  S.,  1887,  22  Ct.  CI.  408,  429,  the  following  definition  is  given: 

"A  privateer  is  an  armed  vessel  belonging  to  one  or  more  private  individuals, 


CHAP.  ITI.]  MILLER   V.    THE   "  RESOLUTION  "  (1).  901 

with  regard  to  the  great  questions  of  law,  which  the  investigation 
and  discussion  of  the  merits  necessarily  introduced;  and  being  before 
this  court  for  their  determination,  the  judgment  and  decree  of  this 
court  must  be  directed  by  tlie  resolves  and  ordinances  of  Congress, 
and,  where  they  are  silent,  by  the  laws,  usage,  and  practice  of 
nations. 

Upon  these  grounds,  the  case  has  been  considered  and  argued  by 
the  counsel  on  both  sides;  and  considered  so  thoroughly  and  argued 
so  copiously,  fully,  and  ably,  that  we  have  now  every  possible  light  of 
which  the  subject  admits. 

The  general  question  is,  "Whether  on  all  the  circumstances  of 
this  case,  the  ship  or  cargo,  or  both,  or  any  part  of  the  cargo,  be  a 
prize;  and  as  such  ought  to  be  condemned  and  confiscated?"  —  the 
libellants  contend  that  both  ship  and  cargo  are  prize  —  if  not  the  ship, 
yet  the  cargo  is  prize;  if  not  the  whole  of  the  cargo,  yet  the  principal 
part  of  it  must  be  condemned. 

Different  grounds  have  been  taken  to  support  these  several  positions 
—  one  ground  is  taken  to  affect  both  ship  and  cargo;  other  and  differ- 
ent grounds  to  affect  the  cargo;  other  and  different  grounds  to  affect 
the  principal  part  of  it. 

The  argument  directed  against  both  ship  and  cargo  is  this:  By  the 
law  of  nations,  after  a  capture  and  occupation  for  twenty-four  hours,  the 
property  captured  is  transferred  to  the  captors  but  the  ship  and  cargo 
in  question  were  captured  and  occupied  twenty-four  hours  —  therefore 
the  property  was  transferred  to  the  captors  —  and  as  the  captors  were 

licensed  by  government  to  take  prizes  from  au  enemy ;  its  authority  in  this  regard 
must  depend  altogether  upon  the  extent  of  tiie  commission  issued  to  it,  and  is  qualified 
and  limited  by  the  laws  under  wliicii  the  commission  is  issued."  The  Thomas  Gibbons, 
8  Cranch,  42L 

In  The  Curlew,  1812,  Stew.  Adm.  312,  326,  Dr.  Croke  said:  "By  the  law  of 
nations,  as  well  as  the  municipal  law  of  this  country,  no  private  vessel  can  cruise 
against  the  enemy,  but  under  a  lawful  commission.  The  power  of  granting  such  com- 
mission is  the  right  only  of  the  sovereign,  or  of  those  to  whom  he  has  deputed  it. 
The  Lord  High  Admiral,  when  there  is  one,  and  the  Lords  Commissioners  of  the 
Admiralty,  who,  when  there  is  no  Lord  Admiral,  is  invested  with  his  general  rights, 
are  the  only  persons  to  whom  it  is  usual  for  the  King  to  give  autliority  to  grant  such 
commissions,  by  themselves  or  by  such  persons  as  they  shall  appoint.  *  *  *  By  the  law 
of  nations :  If  any  private  subjects  cruise  against  the  enemy  without  such  commission, 
they  are  liable  to  be  treated  as  pirates."  The  American  constitutional  provision  has 
been  quoted,  §  1,  ante.  Sailing  and  taking  prize  without  letter  of  marque  vests  prize  not  i 
in  individual  captor  but  in  the  King  as  droit  of  Admiralty,  Nichol  v.  Goodall,  1804,  10 
Ves.  Jr.  155  (per  Lord  Eldon) ;  master  must  be  on  board  when  capture  made,  though 
lieutenant's  presence  was  sufficient  if  captain  were  dead,  The  Charlotte,  1804,  5  C.  Rob. 
280,  Commissions  must  likewise  be  on  board  although  loss  later  does  not  matter; 
The  Estrella,  1819,  4  Wheat.  304.  See  generally,  Taylor,  Int.  Law,  440,  notes  37,  38, 
39.  — Ed. 


902  BELLIGERENTS    AND   NEUTRALS.  [PART  H. 

Britisli  subjects,  the  property  was  British  property,  and  therefore 
legally  attacked  and  captured  by  the  American  privateer  Ariel. 

There  is  no  doubt,  but  that  a  capture  authorized  by  the  rights  of 
war  transfers  the  property  to  the  captor;  but  the  question  is  whether 
a  capture  not  authorized  by  the  rights  of  war  can  have  that  legal 
operation:  for,  the  claimant  says,  "that  the  ship  was  not  originally 
British  but  Dutch  and  neutral  property,  and  that  the  cargo  also  was 
not  originally  British  but  neutral  property,  in  consequence  of  articles 
of  capitulation,  stipulated  on  the  conquest  of  Dominica,  by  the  arms 
of  his  most  Christian  Majesty." 

All  the  authorities  cited  on  cases  of  capture  authorized  by  the 
rights  of  war,  are  where  the  property  captured  was  the  property  of 
an  enemy :  not  an  instance  has  been  produced  where  a  capture,  not 
authorized  by  the  rights  of  war,  has  been  held  to  change  the  property; 
but  many  authorities  have  been  brought  to  show,  that  no  change  is 
effected  by  such  capture.  To  say  that  a  capture  which  is  out  of  the 
sanction  and  protection  of  the  rights  of  war,  can  nevertheless  derive 
a  validity  from  the  rights  of  war,  is  surely  a  contradiction  in  terms. 
The  rights  of  war  can  only  take  place  among  enemies,  and  therefore 
a  capture  can  give  no  right,  unless  the  property  captured  be  the 
property  of  an  enemy.  But  it  is  stated,  that  both  ship  and  cargo,  in 
the  present  case,  were  originally  (that  is  antecedently  to  the  British 
capture)  in  the  predicament  of  neutral  property:  no  property  then 
was  transferred  by  the  capture,  and  of  consequence  the  property  in 
question  was  not  upon  the  ground  it  has  been  considered  —  British 
property.  "But,  it  is  said,  the  fact  cannot  be  ascertained,  that  the 
capture  in  this  case  was  not  authorized  by  the  rights  of  war  —  for  it 
depends  upon  the  will  of  the  sovereign,  whether  an  outrage  and 
capture,  supra  altum  mare,  by  his  subjects  of  the  property  of  subjects 
of  another  nation,  shall  be  an  illegal  and  piratical  act,  or  an  act  of 
hostility:  that  the  sovereign  is  not  obliged  to  jDromulge  his  will  en 
the  moment  he  makes  war,  and  that  as  the  human  will  has  no  physi- 
cal existence,  it  cannot  be  ascertained  but  by  a  declaration  of  it  by 
the  sovereign  himself,  and  therefore  non  constat,  but  that  the  capture 
in  the  present  case  was  authorized  by  the  British  Crown,  and  so  a  fair 
act  of  hostility,  authorized  by  the  rights  of  war." 

This  argument  is  ingenious  and  plausible,  but  not  solid.  As  the 
state  of  nature  was  a  state  of  peace,  and  not  a  state  of  war,  the  natu- 
ral state  of  nations  is  a  state  of  peace  and  society,  and  hence  it  is  a 
maxim  of  the  law  of  nations,  founded  on  every  principle  of  reason, 
justice,  and  morality,  that  one  nation  ought  not  to  do  an  injury  to 
another.  As  the  natural  state  (that  of  nations)  is  a  state  of  peace  and 
btaicvolence,  nations  are  morally  bound  to  preserve  it.     Peace  and 


CHAP.  III.]  MILLER    V.    THE   "  RESOLUTION  "  (1).  903 

friendsliip  must  always  be  presumed  to  subsist  among  nations; 
and  therefore  he  who  founds  a  claim  upon  the  rights  of  war,  must 
prove  that  the  peace  was  broken  by  some  national  hostility,  and  war 
commenced:  but  mere  conjecture,  supposition,  and  possibility  can 
render  no  competent  evidence  of  the  fact.  But  it  is  said  "  here  was 
a  national  hostility  —  viz.  The  capture  by  the  British  privateer;  and 
the  act  of  the  subject  is  the  act  of  the  sovereign." 

The  act  of  the  subject  can  never  be  the  act  of  the  sovereign;  unless  ' 
the  subject  has  been  commissioned  by  the  sovereign  to  do  it:  but,  in  ' 
this  case,   there  is  no  evidence  that  the  commission  of   the  British 
privateer  extended  to  property,  under  the  circumstances  of  the  prop- 
erty captured. 

But  it  is  asked  "what  private  or  public  mischief  can  be  appre- 
hended from  considering  property  under  the  circumstances  of  this 
case  as  prize:  for  the  wrong  was  committed  by  the  British  privateer, 
and  therefore  the  British  nation  is  chargeable  with  it,  and  bound  to 
make  compensation." 

We  are  inclined  to  think,  that  were  the  claimants  to  apply  to  the 
British  Crown  for  compensation,  they  would  be  told  "that  although 
satisfaction  were  done,  yet  it  would  be  in  proportion  only  to  the 
wrong  done  by  the  British  privateer,  which  consisted  only  in  the 
seizure  and  detention.  But  if  compensation  was  expected  for  ship 
and  cargo,  they  must  look  to  that  nation  for  it,  whose  courts  declared 
a  condemnation,  and  whose  subjects  reaped  the  fruits  of  it." 

But,  it  is  alleged,  that  "the  late  ordinance  of  Congress  is  express 
and  decided,  that  after  a  capture  and  occupation  for  twenty-four 
hours  the  property  captured  shall  be  prize." 

The  ordinance  of  Congress  certainly  speaks  of  a  legal  capture;  to 
admit  a  different  construction  would  be  a  violence  both  to  the  terms 
and  spirit,  or  intention,  of  it.  Prize  is  generally  used  as  a  technical 
term  to  express  a  legal  capture;  and  Congress  having  adopted  it  in 
framing  of  the  ordinance,  the  general  sense  or  acceptation  of  it  must 
determine  its  import  and  signification.  But  suppose  the  term  prize 
merely  imported  a  capture,  without  any  reference  to  its  legality,  and 
that  it  was  the  spirit  and  intention  of  the  ordinance  to  subject  to 
l)rize  all  captures,  both  legal  and  illegal,  after  twenty-four  hours;  it 
does  not  follow  that  it  would  affect  the  present  case.  The  municipal 
laws  of  a  country  cannot  change  the  law  of  nations,  so  as  to  bind  the 
subjects  of  another  nation ;  and  by  the  law  of  nations  a  neutral  sub-  I 
ject,  whose  property  has  been  illegally  captured,  may  pursue  and  ; 
recover  that  property  in  whatever  country  it  is  found,  unless  a  com-  ! 
patent  jurisdiction  has  adjudged  it  prize.  The  municipal  laws  of  a 
country  can  only  bind  its  own  subjects. 


904  BELLIGERENTS    AND   NEUTEALS.  [PART  II, 

The  ordinance  of  Congress  is  in  truth  a  new  regulation  of  the  jus 
post  liminil,  and  limits  it  to  a  recapture  within  twenty-four  hours, 
and  therefore  can  only  relate  to  the  subjects  of  the  United  States :  it 
adopts  the  ordinance  of  France,  and  that  ordinance  relates  only  to 
the  subjects  of  France.  In  both  cases,  with  regard  to  the  owner,  a 
subject,  the  prpperty  captured  is  not  passed  away  before  the  expira- 
tion of  twenty-four  hours.  But  put  the  case  of  a  capture  and  the 
sale  of  it  before  twenty-four  hours  to  a  neutral  subject;  the  sale  is 
certainly  good  and  conclusive  upon  the  owner;  for  the  question  must 
be  decided  by  the  law  of  nations,  and  by  the  law  of  nations,  the 
property  captured  is  transferred  to  the  captor  as  soon  as  it  is  taken. 

Both  the  ordinances  therefore  of  Congress  and  of  France,  in  our 
opinion,  relate  only  to  property  captured  from  a  subject  and  recap- 
tured; and  not  to  property  captured  from  a  neutral  and  recaptured. 
It  is  said,  "that  arguments  drawn  from  the  law  of  nations  with 
regard  to  pirates,  do  not  apply  to  the  present  case,  because  pirates 
have  not  the  rights  of  war." 

If  the  principal  fact  was  properly  attended  to,  the  present  case 
could  not  be  questioned.  Whence  is  it  that  pirates  have  not  the 
rights  of  war?  Is  it  not  because  tliey  act  without  authority  and  com- 
mission from  their  sovereign?  And  is  it  not  objected  and  proved, 
that  the  British  privateer,  with  regard  to  the  property  captured, 
acted  without  commission  and  authority  from  the  British  Crown?  So 
far  from  there  being  any  dissimilarity  in  the  cases,  it  is  in  fact  the 
very  case  in  judgment,  considering  it  on  the  first  ground  of  argument. 

But,  it  is  alleged,  "that  the  capture  by  the  British  privateer  must 
be  considered  as  legal :  for,  after  a  capture  and  occupation  for 
twenty-four  hours,  the  legality  of  the  capture  is  not  open  for  ques- 
tion and  examination." 

This  doctrine  must  never  be  suffered;  there  is  no  example  or  pre- 
cedent for  it  to  be  found  in  any  of  our  books;  it  breaks  down  and 
destroys  the  distinction  between  right  and  wrong;  it  gives  a  sanction 
to  injustice,  robbery,  and  piracy,  and  it  is  reprobated  by  the  laws, 
usage,  and  practice  of  nations.  Lord  Mansfield,  in  the  case  so  often 
quoted,  2  Burr.  693,  says,  "The  question,  whether  the  property  is 
transferred  by  the  capture,  can  only  happen  between  the  owner  and 
vendee,  and  between  the  owner  and  the  recaptor."  But  the  question 
could  never  happen  between  the  owner  and  the  recaptor,  if  the  legality 
of  the  capture  was  not  examinable  on  every  libel  for  condemnation  as 
prize.  The  question  is  —  prize  or  no  prize?  That  is  whether  the 
capture  be  legal  or  not. 

The  legality  of  a  capture  is  open  for  question  and  examination,  till 
a  competent  jurisdiction  has  decided  the  question,  and  a  decree  passes 


CHAP.  III.]  MILLER    V.    THE    "  RESOLUTION "'  (1).  905 

for  condemnation  as  prize;  then,  and  not  before,  all  further  qiu'stions 
and  examinations  are  precluded;  then,  all  parties,  and  all  foreign 
courts,  are  estopped  to  say,  "the  capture  is  not  legal;"  and  if  the 
decree  be  erroneous  or  iniquitous,  the  party  injured  must  apply  for 
redress  to  that  nation  whose  courts  have  committed  the  error  or 
iniquity. 

"Great  difficulties,  it  is  said,  will  arise,  if  capture  and  occupation 
for  twenty-four  hours  should  not  be  considered  as  conclusive  evidence 
of  property  in  the  captor,  and  that  the  capture  was  legal."  And  it  is 
asked  "'must  a  regular  title  be  deduced  from  the  first  proprietor  to  the 
captor,  as  in  case  of  an  ejectment  at  the  common  law?"  And  "must 
common  law  strictness,  in  making  out  titles,  be  adopted  in  Admiralty 
Courts?" 

Every  libel  states  a  title  to  the  thing  captured;  the  title  must  not 
only  be  stated,  but  it  must  also  be  proved.  It  is  stated  in  the  libel 
in  this  case,  that  the  property  captured  was  British  property,  and  the 
evidence  to  prove  it  is,  "possession  and  occupation  of  it  by  the  British 
privateer." 

A  title  thus  traced  is  a  good  one,  in  a  court  of  common  law,  except 
in  a  single  case :  it  is  a  good  title  against  all  the  world  except  the 
right  owner.  This  exception  is  founded  on  every  principle  of  reason 
and  justice;  it  ought  not  only  to  be  adopted  in  courts  of  common  law, 
but  in  every  court,  where  the  distinction  between  right  and  wrong  is 
preserved,  and  justice  regarded.  Possession  and  occupation  ought, 
upon  a  question  of  property,  to  have  the  same  influence  in  courts  of 
admiralty,  as  in  courts  of  common  law:  it  ought  to  be  considered  as 
a  good  title,  and  conclusive  upon  all  mankind  except  the  right  owner. 
Such  a  title  is  clear  of  all  difficulties  in  the  proof  of  it;  it  excludes 
the  necessity  of  a  regular  deduction  of  title  from  the  first  proprietor 
down  to  the  captor;  it  is  disengaged  from  those  entanglements,  which 
result  from  a  variety  of  possible  changes  and  mutations  of  the  prop- 
ertv;  and  it  cannot  be  shook,  but  when  every  honest  man  will  say  it 
ought  to  be  shook,  —  when  the  right  owner  appears  and  proves  his 
property.  We  have  now  done  with  the  observations  and  reasoning, 
that  relate  to  the  first  ground  of  argument:  and  are  of  opinion,  that 
if  the  ship  and  cargo  were  originally  neutral  property,  the  capture 
and  occupation  for  twenty-four  hours  did  not  change  it  into  British 
propert}^  and  make  it  prize. ^ 

1  Twenty-four  hours'  quiet  possession  by  the  enemy  was  test  of  capture  by  Act  of 
Congress,  March  27,  1781.     Journals  of  Confederation  Congress,  VII.  59. 

It  was  liekl,  pp.  15  to  18,  and  for  this  purpose  tlie  case  is  cited  by  Kent,  1  Com. 
104,  that  compacts  with  common  enemy  bind  allies.  —  Ed. 


906  BELLIGERENTS   AND   NEUTRALS.  [PART  II. 

MILLER  V.    THE   "EESOLUTTON"  (2). 
Federal  Couht  of  Appeals,  1781. 

(2  Dallas,  19.) 

By  the  Court:  —  As  the  original  decree  has  not  been  carried  into 
execution,  we  tliink  it  proper,  under  the  peculiar  circumstances  of  the 
present  case,  to  allow  a  rehearing.  But  this  is  not  to  be  drawn  into 
precedent;  nor  is  any  point  previously  determined,  to  be  brought 
again  into  litigation,  unless  the  state  of  the  facts  respecting  it  shall 
be  altered  by  the  new  evidence. 

The  causes  were,  accordingly,  argued  for  several  successive  days; 
and  on  the  24th  of  Jan.,  1782,  the  following  revisionary  decree 
(altering  the  suspended  decree  only  as  to  a  part  of  the  cargo)  was 
delivered  by  William  Baca  and  Cykus  Gkiffix,  the  presiding  com- 
missioners. 

By  the  Court: —  We  have  considered  the  new  evidence  which  has 
been  laid  before  us,  and  we  have  also  considered  the  observations  and 
arguments,  which  the  counsel  upon  both  sides  have  made  upon  it. 

On  the  first  argument  we  were  of  opinion,  that  the  ship  ought  to 
be  considered  in  the  predicament  of  neutral  property,  and  entitled 
to  all  the  rights  and  privileges  of  neutrality,  which  the  ordinance  of 
Congress  ascertained  and  conferred;  we  took  up  this  idea  from  a  con- 
struction of  the  articles  of  capitulation  and  the  British  proclamation, 
which  issued  immediately  on  the  rupture  between  Great  Britain  and 
the  States  General,  and  which  protected  the  ship  Resolutioyi  for  a 
limited  time  from  British  capture  on  her  passage  from  Dominica  to 
Amsterdam :  we  conceived,  that  the  neutrality  of  the  States  General, 
with  regard  to  the  ship,  abstractly  considered,  was  not  broken  by 
tlie  rupture;  the  proclamation  having  controlled  the  extent  of  the 
war,  by  its  exemption  of  the  ship  from  being  a  subject  of  hostility 
and  capture. 

Such  was  our  opinion  on  the  first  argument:  but  on  consideration 
of  tlie  last  argument,  we  are  of  a  different  opinion. 

The  writers  upon  the  law  of  nations,  speaking  of  the  diiferent  kinds 

of  war,  distinguish  them  into  perfect  and  imperfect:  a  perfect  war 

is  that  which  destroys  the  national  peace  and  tranquillity,  and  lays 

the  foundation  of  every  possible  act  of  hostility:  the  imperfect  war 

[  is  that  wliich  does  not  entirely  destroy  the  public  tranquillity,  but 

'  interrupts  it  only  in  some  particulars,  as  in  the  case  of  reprisals. 


CHAP.  III.]  MILLER   V.    THE    "RESOLUTION"  (2).  907 

Before  Great  Britain  commenced  war  witli  the  States  General,  the 
States  were  a  neutral  nation  with  regard  to  the  war  between  Great 
Britain,  France,  Spain,  and  America:  they  had  taken  no  part  in  the 
war,  and  were  a  common  friend  to  all.  This  is  precisely  the  legal 
idea  of  a  neutral  nation:  it  implies  two  nations  at  war,  and  a  third  in 
friendship  with  both.  The  war  which  Great  Britain  commenced  with 
the  States  General  was  a  perfect  war:  it  destroyed  the  national  peace 
of  the  States  General,  and  with  it  the  neutrality  of  the  nation.  The 
States  became  a  party  in  the  general  war  against  Britain :  they  were 
no  longer  a  common  friend  to  the  belligerent  powers;  and  therefore 
they  ceased  to  be  a  neutral  nation. 

War  having  thus  destroyed  the  neutrality  of  the  States  General, 
they  can  never  resume  the  character  of  a  neutral  until  they  are  in 
circumstances  to  resume  the  cliaracter  of  a  common  friend  to  Great 
Britain,  France,  Spain,  and  America:  but  this  character  is  not  to  be 
acquired  while  war  subsists  between  them  and  Great  Britain.  Only 
a  peace,  therefore,  between  Britain  and  the  States,  can  put  the  States 
in  a  capacity  to  resume  their  original  character  of  neutrality.  But 
there  can  be  no  peace  without  the  concurrence  of  both  nations :  the 
British  could  not  therefore,  by  the  mere  authority  of  their  proclama- 
tion, restore  back  to  the  ship  Resolution  her  original  neutrality.  The 
proclamation  could  only  operate  as  a  protection  of  the  ship  from 
British  capture. 

We,  therefore,  lay  out  of  question  the  ordinance  of  Congress  with 
regard  to  the  rights  of  neutrality;  this  case  is  not  within  it.  But 
the  ship  Resolution  is  captured  and  both  ship  and  cargo  are  libelled 
as  prize.  A  question  is  made;  on  whom  lies  the  ovus  j^^'ohanJi? 
We  think  on  the  captors.  There  can  be  no  condemnation  without 
Xjroof  tliat  the  ship  or  cargo  is  prize:  and  it  cannot  be  expected,  that 
the  persons  w^ho  contest  the  capture  will  produce  that  proof. 

Every  capture  is  at  the  peril  of  the  party.  A  privateer  is  not 
authorized  to  capture  every  vessel  found  on  the  high  sea:  she  is 
commissioned  to  capture  only  such  ships  as  are  the  property  of  the 
enemy.  Every  ship  indeed  may,  in  time  of  war,  be  brought  to  and 
examined;  but  she  is  not  to  be  seized  and  captured,  without  the 
captors  have  just  grounds  to  think  she  is  the  property  of  an  enem}', 
and  not  the  property  of  subjects  of  a  nation  in  peace  and  friendship, 
or  neutrality.  If  such  seizure  and  capture  are  made  without  just 
grounds,  the  party  injured  is  entitled  to  have  an  action  for  damages: 
and  it  is  the  policy  of  all  nations  at  war  to  oblige  the  captains  of 
privateers  to  give  bond  and  security,  to  enforce  a  proper  conduct 
while  at  sea,  and  to  prevent  seizures  and  captures  from  being  wan- 
tonly made. 


908  BELLIGERENTS   AND   NEUTRALS.  [PART  II. 

The  sea  is  open  to  all  nations :  no  nation  has  an  exclusive  property 
iu  the  sea.  Put  the  case  then,  that  a  privateer  meets  a  ship  at  sea; 
is  it  to  be  inferred,  from  the  mere  circumstance  of  the  ship's  being 
found  on  the  high  seas,  that  she  is  the  property  of  an  enemy? 
Surely  there  is  no  ground  for  such  an  inference:  on  this  ground  a 
privateer  might  seize  and  capture  the  ships  of  its  own  nation.  But 
the  privateer  attacks,  seizes,  captures,  and  brings  the  ship  into  port: 
it  is  plain  here  is  an  act  of  violence;  a  seizure  and  capture.  The 
captain  therefore  must  do  two  things:  at  all  events  he  must  show 
just  grounds  for  the  violence,  or  he  will  be  punishable  at  law  by  an 
action  of  damages:  and  in  the  next  place,  before  he  can  obtain  con- 
demnation, he  must  prove  the  ship  to  be  the  property  of  an  enemy; 
for,  it  can  never  be  enough  for  condemnation,  that  he  found  the  ship 
at  sea. 

The  captors  say:  "That  in  the  present  case  they  had  not  only  just 
grounds  for  seizure;  but  they  have  also  just  grounds  for  condemna- 
tion: for  both  the  ship  and  cargo  were  found  in  the  possession  of 
British  subjects,  and  therefore  British  property." 

It  must  be  admitted  that  possession  is  presumptive  evidence  of 
property;  because  possession  is  a  circumstance  which  generally  ac- 
companies property;  and,  therefore,  the  seizure  and  capture,  in  the 
present  case,  was  a  violence  at  all  events  justified  by  the  law  of  na- 
tions, and  for  which  no  action  would  lie,  even  on  acquittal  of  the 
ship  and  cargo.  But  the  possession  in  this  case  is  no  ground  for 
condemnation:  for  what  is  the  nature  of  presumptive  evidence?  It 
only  has  the  force  of  evidence  whilst  it  remains  uncontested.  The 
possession  is  clearly  accounted  for :  the  ship  came  into  the  hands  of 
the  enemy  by  capture;  and  the  prior  possession  was  in  the  hands  of 
Dutch  subjects,  and  not  British  subjects.  The  presumption  therefore 
relied  on  by  the  captors  is  defeated,  and  the  argument  founded  on  the 
possession  is  in  favor  of  the  claimants. 

On  the  question  of  prize  or  no  prize,  what  evidence  does  the  law  of 
nations  admit  for  the  determination  of  it? 

The  national  interest  of  every  commercial  country  requires,  that 
some  mode  or  criterion  be  adopted  to  ascertain  the  shij),  cargo,  des- 
tination, property,  and  nation  to  which  such  ship  belongs;  not  only 
as  a  security  for  a  fair  commerce  according  to  law;  but  as  a  guard 
against  fraud  and  imposition  in  the  payment  and  collection  of  duties, 
imposts,  and  commercial  revenues.  The  peace  also  and  tranquillity  of 
nations  equally  require,  that  the  like  criterion  should  be  adopted,  to 
distinguish  the  ships  of  diiferent  countries  found  on  the  high  seas  in 
time  of  war;  to  prevent  an  indiscriminate  exercise  of  acts  of  hostility, 
which  may  lay  the  foundation  of  general  and  universal  war.     Hence 


CHAP.  111.]  MILLER    V.    THE    "  RESOLUTION  "  (2),  909 

it  is,  that  every  commercial  country  has  directed,  by  its  laws,  that 
its  ships  shall  be  furnished  with  a  set  of  papers  called  ship  papers: 
and  this  criterion  the  law  of  nations  adopts,  in  time  of  war,  to  dis- 
tinguish the  property  of  different  powers,  when  found  at  sea;  not 
indeed  as  conclusive,  but  presumptive  evidence  only.  Bills  of  lad- 
ing, letters  of  correspondence,  and  all  other  papers  on  board,  which 
relate  to  the  ship  or  cargo,  are  also  considered  as  jirimd  facie  evidence 
of  the  facts  they  speak;  because  such  papers  naturally  accompany 
such  a  mercantile  transaction. 

Such  then  is  the  evidence  which  the  laAv  of  nations  admits  on  a 
question  of  prize  or  no  prize;  and  it  is  on  this  evidence  that  vessels 
with  their  cargoes  are  generally  acquitted  or  condemned:  and  there- 
fore, if  in  this  case  the  papers  on  board  affirm  the  ship  and  cargo  to 
be  such  property  as  is  not  prize,  there  must  be  an  acquittal,  unless 
the  captors  are  able,  by  a  contrariety  of  evidence,  to  defeat  the  pre- 
sumption which  arises  from  the  papers,  and  can  show  just  grounds 
for  condemnation.  On  the  other  hand,  if  the  papers  affirm  the  ship  j 
and  cargo  to  be  the  property  of  an  enemy,  there  must  be  a  condem- 
nation, unless  they  who  contest  the  capture  can  produce  clear  and 
unquestionable  evidence  to  prove  the  contrary.^ 

1  In  The  Nuestra  SeTiom  de  Regia,  1882,  108  U.  S.  92,  the  court  said:  "  The  duty  of  : 
a  captor  is  to  institute  judicial  proceedings  for  the  condemnation  of  his  prize  without 
unnecessar}'  delay,  and  if  he  fails  in  tliis  tiie  court  may,  in  case  of  restitution,  decree 
demurrage  against  him  as  damages.  Tliis  rule  is  well  settled.  Slocum  v.  Maijbernj, 
2  Wheat.  1;  The  AppoUon,^  Wheat.  377;  The  Livehj,  1  Gall.  31 5;  The  Corier  Maralimo, 
1  C.  Rob.  287."  See  also  Jecker  v.  Montgomery,  supra,  for  the  power  to  establish  a 
Prize  Court,  and  see  also  Fajj  et  at.  v.  Montgomerij,  1852,  1  Curtis,  266,  as  well  for  the 
duty  to  send  in  the  prize  for  adjudication  as  for  circumstance  excusing  delay.  In 
Hooper,  Adm'r,  v.  (7.  S.,  1887,  22  Ct.  CI.  408,  439,  Davis,  J.,  says:  "  TJie  distinction 
must  not  be  forgotten  between  a  legal  and  justifiable  seizure  and  an  illegal  and  un- 
justifiable condemnation.  The  seizure  of  a  vessel  may  be  successfully  defended  upon 
grounds  which  would  not  support  a  subsequent  condemnation  and  '  prize  courts  deny 
damages  when  there  was  probable  cause  for  the  seizure,  and  are  often  justified  in 
awarding  to  the  captors  their  costs  and  expenses,'  even  when  the  vessel  and  cargo  are 
decided  not  good  prize  and  returned  to  their  owners.  The  Thompson,  3  Wall.  155; 
Jecker  v.  Montgomery,  13  How.  498;  Murray  v.  The  Charming  Betsey,  2  Cr.  64."  And 
later  in  discussing  the  burden  of  proof,  the  same  learned  judge  says :—  "  The  burden  ■ 
of  proof  in  prize  proceeding  is  on  the  seized  vessel.  The  authorities  concur  in  this  gen-  ; 
eral  statement,  but  the  principle  is  not  technical  and  is  not  pushed  beyond  its  proper 
natural  intent.  Seized  vessels  always  appear  before  the  court  under  the  taint  of 
suspicion  ;  that  taint  it  is  incumbent  upon  them  to  remove,  as  it  is  in  their  power  alone 
to  do  so.  What  the  court  looks  for  is  the  fact.  If  it  appears  that  the  vessel  was  in- 
nocently pursuing  an  honest  and  legal  voyage,  whether  that  appear  by  papers  or  other- 
wise, then  the  vessel  should  be  released.  No  particular  paper,  no  specified  character  I 
of  evidence  is  marked  out  and  defined  as  indispensable  to  attain  this  end.  A  case  is  ' 
easily  supposable  in  which  a  merchant  vessel  has  lost  its  papers  by  accident,  or  by 
theft,  or  by  robbery  committed  by  a  pirate  or  privateer,  or  through  suppression  by 


910  BELLIGERENTS    A^*D    NEUTRALS.  [PAIlT  II. 

COMMODORE  STEWARTS   CASE. 
United  States  Court  of  Claims,  1864. 

(1  Court  of  Claims,  113.) 

Casey,  C.  J.,  delivered  the  opinion  of  the  court: 

The  claimant  sets  forth  in  his  petition  that,  on  the  20 :h  February, 
1815,  he  was  a  captain  in  the  navy  of  the  United  States  and  was  in 
command  of  the  United  States  frigate  C institution.  That  on  that 
day  he  overtook,  on  the  high  seas,  about  sixty  leagues  from  the  island 
of  Madeira,  the  British  ships-of-war  Cj/ane  and  Lecant  and  engaged 
them;  and,  after  a  sharp  conflict  of  forty  minutes,  they  surreudered 
to  him  and  he  took  possession  of  them  as  prizes  of  war.  He  pro- 
ceeded with  them  and  his  own  ship  to  the  island  of  St.  lago,  in  the 
possession  of  the  troops,  and  subject  to  the  dominion  of  the  prince 
regent  of  Portugal,  with  whom  the  United  States  was  then  at  peace, 
and  who  had  issued  a  declaration  of  neutrality  between  the  belligerents, 
—  the  United  States  and  Great  Britain. 

Having  come  to  anchor  in  the  port  of  Praya,  on  the  10th  of  ^March, 
1815,  and  while  he  was  preparing  to  divest  himself  of  the  prisoners 
taken  on  the  Cyane  and  Levant  by  sending  them  to  Barbadoes.  he 
discovered  on  the  following  day,  off  the  port,  a  squadron  consisting 
of  three  British  ships-of-war,  the  Leandei',  Xew  Castle,  and  ^Icasfa; 
but  which,  in  consequence  of  the  prevalence  of  a  dense  fog,  were  not 
discovered  until  within  three  miles,  and  standing  in  for  anchorage. 
Being  apprehensive  that  the  enemy  would  not  respect  the  immunity 
afforded  by  a  neutral  port,  Captain  Stewart  put  to  sea  with  the 
Constitution  and  his  prizes,  and  the  squadron  immediately  gave  chase. 

the  captor,  and  it  could  not  be  admitted  —  tiie  fact  of  their  non-production  being 
explained,  and  the  vessel's  honest  character  being  shown  —  that  because  some  partic- 
ular docunu'nt  was  not  on  board  she  tlierefore  siiould  be  condemned  and  confiscated. 
The  onus  /)iobandi  is  on  the  captured  vessel;  wiiich  means  no  more  than  tliat  she  must 
explain  away  suspicious  circum«;tances." 

In  the  ship  Tom,  1894,  29  Ct.  of  Cls.  68,  97,  it  is  held  that  a  belligerent,  seizing  a 
neutral  vessel  upon  mere  suspicion,  is  responsible  for  the  vessel,  and  is  excused  for  her 
loss  only  where  it  is  caused  by  unavoidable  cnsualt)'.  In  The  Caroline  Wilmons,  1892, 
27  Ct.  of  Cls.,  it  was  held  that  captors  are  not  liable  for  loss,  without  their  fault,  of  a 
vessel  seized  and  held  as  contraband  of  war. 

For  the  duties  of  captors,  see  The  Anna  ^faria,  1817,  2  Wheat.  .328,  .332;  The  Vronw 
Johanna.  1803,  4  C.  Rob.  .348,  3.51  ;  Tk>-  San  Juan  Baptisln.  1803,  5  C.  Rob.  33;  The 
Zee  Star,  1801,  4  C.  Rob.  71 ;  The  Felirit,,,  1819,  2  Dod.  .381,  .383;  The  Lencnde.  1855, 
Spinks,  217,  221;  Der  Mohr,  1802,  4  C.  Rob.  314;  Die  Fire  Darner,  1805,  5  C.  Rob. 
367.  —  Ed. 


CHAP,  in.]  COMMODOIIE    STEWARTS    CASE.  9ll 

After  about  au  hour's  chase,  finding  tlie  Ci/ane  sailing  dull  and 
dropping  down  on  the  Acasta,  he  signalled  her  to  tack,  which  she 
immediately  did,  doubled  the  rear  of  the  enemy  and  afterwards  arrived 
safely  at  New  York.  The  enemy  took  no  notice  of  the  Cydnd's  change 
of  course,  but  continued  the  pursuit  of  the  Conatltution  and  Levant. 
Soon  after  he  discovered  the  Levant  dropping  down  in  the  same  way 
that  the  Cyane,  had  done,  and  he  ordered  her  also  to  tack,  which  she 
did.  The  enemy  continued  the  chase  after  her,  cut  off  her  retreat, 
and  forced  her  back  into  the  port  of  Praya,  where  she  came  to  anchor 
close  to  the  battery.  She  was  in  this  position  when  the  enemy's  ships 
stood  in,  fired  at  her,  and  forced  her  to  surrender,  took  possession  of 
her,  and  carried  her  out  of  the  harbor,  without  the  Portuguese  authori- 
ties attempting  to  hinder  or  prevent  them,  or  offering  any  resistance 
or  remonstrance  to  the  violation  of  the  neutral  rights  and  sovereignty 
of  Portugal. 

The  claimant  farther  alleges  that  the  United  States  had  a  clear  and 
undoubted  claim  upon  the  Portuguese  Government  for  allowing 
hostilities  to  be  carried  on  and  recapture  of  the  ship  made  within  her 
neutral  territory  ;  and  that  the  claim  of  the  claimant  and  his  crew 
was  recognized  by  Mr.  Crowninshield,  Secretary  of  the  Navy,  in  a 
letter  addressed  to  the  claimant  on  the  13th  .June,  1816. 

He  further  avers  that  in  the  years  1850  and  1853  he  called  the 
attention  of  the  Secretary  of  State  of  the  United  States  to  the  case, 
and  that  the  replies  assured  him  that  the  matter  should  receive  the 
attention  and  consideration  which  its  importance  demanded. 

The  petition  also  alleges  that  claimant  memorialized  Congress  on 
the  same  subject,  and  that  the  Naval  Committee  of  the  House  of 
Representatives,  in  1816,  reported  against  the  payment  of  the  whole 
value  of  the  Levant  to  the  officers  and  crew  of  the  ship  Constitution, 
but  recommended  the  passage  of  an  act  giving  them  the  sum  of 
twenty-five  thousand  dollars,  which  should  be  deducted  from  the  whole 
value,  if  the  United  States  recovered  it  from  Portugal.  The  value  is 
alleged  to  have  been  one  hundred  thousand  dollars.  The  act  passed  by 
Congress  is  in  the  following  words  : 

"An  Act  rewarding  the  officers  and  crew  of  the  Constitution  for  the 
capture  of  the  British  sloop-of-war  Levant:  — 

"  Be  it  enacted,"  &c.,  "  That  the  President  of  the  United  States  be  and 
hereby  is,  authorized  to  have  distributed  as  prize  money,  to  Captain 
Charles  Stewart,  late  of  the  frigate  Constitution,  his  officers  and  crew, 
the  sum  of  twenty-five  thousand  dollars,  for  the  capture  of  the  British 
sloopof-warieya?i^y  and  that  the  sum  of  twenty-five  thousand  dollars, 
out  of  any  money  in  the  treasury  not  otherwise  appropriated,  be  and 
the  same  is  hereby  appropriated  for  the  purpose  aforesaid." 


912  BELLIGERENTS   AND   NEUTRALS.  [PART  IL 

This  act  was  approved  26th  April,  181G  (3  Stat.  301),  and  the 
money  was  paid  according  to  its  provisions. 

The  petition  also  avers  that  he  and  those  for  whom  he  claims  are 
citizens  of  the  United  States,  and  can  have  no  redress  against  the 
Portuguese  Government,  from  whom  the  indemnity  is  due  ;  that  it 
was  and  is  the  duty  of  the  United  States  to  prosecute  and  enforce  the 
claim,  on  their  behalf,  against  Portugal,  and  on  the  recovery  of  the 
amount  to  distribute  the  same  to  him,  his  officers  and  crew ;  that  there 
was  a  convention  between  the  two  governments  in  1851  for  the  adjust- 
ment of  the  claims  of  citizens  of  the  United  States  against  Portugal, 
in  which  this  claim  was  not  included,  and  that  by  having  relinquished 
the  claim  without  the  authority  or  consent  of  claimants,  or  failed  to 
prosecute  and  enforce  it,  the  United  States  became  liable  to  pay  it 
themselves. 

The  5th  and  6th  sections  of  the  Act  of  Congress  approved  23d 
April,  1800  (1  Stat.),  in  force  at  the  time  of  the  capture  of  these 
vessels,  gave  the  captors  the  whole  of  the  captured  vessels,  where 
they  were  superior  in  force  to  the  vessel  making  the  capture.  The 
Cyane  was  libelled  in  the  Admiralty  Court  at  Xew  York  and  duly 
condemned  as  good  and  lawful  prize  to  the  captors.  The  claimant 
contends  that  by  the  capture  of  the  Levant  the  prize  vested  in  him  and 
his  crew ;  that  the  recapture  under  the  circumstances  alleged  was 
illegal,  and  that  Portugal  was  liable  to  the  United  States,  and  they 
to  the  claimants,  for  the  value  of  the  prize. 

To  this  petition  the  solicitor  of  the  United  States  has  demurred,  and 
assigns  for  cause  of  demurrer:  — 

1st.  That  the  petition  sets  forth  no  valid  ground  of  claim. 

2d.  That  it  does  not  appear  that  the  United  States  had  released 
Portugal,  or  relinquished  any  claim  the  plaintiffs  have  upon  her  for 
indemnity. 

There  can  be  little  doubt  that  the  facts  set  forth  in  the  petition  — 
and  on  this  demurrer  they  must  be  taken  as  true  —  show  that  the 
officer  in  command  of  the  British  squadron  was  guilty  of  the  violation 
of  the  neutral  rights  of  Portugal  in  making  her  territory  the  scene  of 
conflict  with  and  capture  of  this  vessel.  For  such  au  insult  to  her 
sovereignty  and  invasion  of  her  just  rights  as  a  neutral,  she  had  just 
grounds,  under  the  law  of  nations,  to  claim  indemnity  and  reparation 
from  Great  Britain.  It  is  equally  clear,  we  think,  that  the  United 
States  had  the  right  to  insist  upon  indemnity  from  Portugal  for  this 
invasion  of  her  right  of  asylum  in  a  neutral  port. 

Hostilities  began  or  continued  in  a  neutral  territory  must  violate 
the  rights  of  sovereignty  of  the  neutral  power,  and  therefore  the  law 
of  nations  forbids  the  belligerent  power  to  begin  or  continue  hostilities 


CHAP.  III.]  COMMODORE   STEWART's   CASE.  913 

in  the  territory  or  ports  under  the  dominion  of  the  neutral  sovereign. 
Marten's  Law  of  Nations,  bk.  6,  ch.  6,  §  6. 

For  this  reason,  when  two  vessels,  enemies  of  each  other,  meet  in  a 
neutral  port,  or  one  pursues  the  other  into  such  port,  not  only  must 
they  refrain  from  all  hostilities  while  they  remain  there,  but  sliould 
one  set  sail,  the  other  must  not  sail  in  less  than  twenty-four  hours 
afterwards.     Moser's  Grundlehren,  ch.  21,  §  25,  p.  2G9. 

And  because  foreigners  can  do  nothing  in  a  territory  against  the 
will  of  the  sovereign,  it  is  unlawful  to  attack  an  enemy  in  a  neutral 
country,  or  commit  in  it  any  other  act  of  hostility.  The  Dutch  East 
India  fleet  having  put  into  Bergen,  in  Norway,  in  1666,  to  avoid  the 
English,  the  British  admiral  had  the  temerity  to  attack  them  there. 
The  governor  of  the  town  fired  upon  the  a/sailants,  and  the  Danish 
Government  made  it  the  subject  of  grave  complaint,  as  being  in 
violation  of  her  neutrality  and  injurious  to  her  honor  and  dignity 
as  an  independent  and  neutral  sovereignty.  Vatt.  bk.  III.  ch.  vii. 
§  132. 

Belligerent  powers  must  be  exercised  within  the  belligerent  territor}', 
on  the  high  seas  or  on  territory  belonging  to  no  one ;  and  all  hostilities 
exercised  within  the  territorial  jurisdiction  of  the  neutral  power  are 
unlawful,  and  are  strictly  prohibited  by  the  law  of  nations.  Wheat. 
L.  of  Nat.  p.  713-14.  It  follows  that  all  captures  made  within  such 
neutral  territory  are  absolutely  void.  Ibid.  715.  Bynkershoek 
indeed  mentions  an  exception  to  tliis  rule  in  the  case  of  an  hostile 
vessel  met  at  sea,  which  he  says  in  the  pursuit  may  be  chased  into  the 
neutral  territory ;  but  he  is  not  sustained  by  any  writer  of  authority 
or  by  the  adjudications  of  the  prize  courts.  "When  the  capture  within 
the  ueutral  territory  is  established,"  says  Sir  William  Scott,  "  it  over- 
rules every  other  consideration,  —  the  capture  is  done  away ;  the 
property  must  be  restored,  notwithstanding  it  may  actually  belong  to 
the  enemy."  The  Vrouw  Anna  Catharina,  5  Eob.  15;  W^heat.  Law  of 
Nations,  p.  722. 

So  far  has  this  doctrine  been  carried  that  it  is  held  to  be  a  violation 
of  the  rights  of  sovereignty  of  the  neutral  power  to  issue  a  belligerent 
commission  within  a  neutral  country,  or  to  equip  and  fit  out  cruisers 
in  such  country,  or  to  augment  the  force  of  a  belligerent  ship  in  a 
neutral  port.  In  all  these,  and  the  like  eases,  if  captures  are  subse- 
quently made  on  the  belligerent  territorj^,  or  the  high  seas,  and  the 
prizes  are  brought  into  a  port  of  such  neutral  country,  restitution  will 
be  decreed  and  enforced  by  the  tribunals  of  the  country  whose  neutral- 
ity has  been  violated.  Talbot  v.  Jansen,  3  Dall.  133;  The  Alesta,  9 
Cranch,  359;   TJie  Estrella,  4  Wheat,  298;  The  Arrar/onfe  Bareelones, 

7  Wheat.  496;  La   Conce/jiion,   6  Wheat.  235;    77ie  Santa  Maria,  7 

53 


914  BELLIGERENTS    AND   NEUTRALS.  [PART  II. 

Wheat.  490;  The  Santissima  Trinidad,  7  Wheat.  233;  Abbot  ou 
Shipi)ing,  p.  34,  in  note ;  The  Anna,  5  Eob.  373. 

These  authorities,  and  many  others  that  might  be  cited,  show  very 
clearly  that  the  acts  and  proceedings  of  the  British  officer  in  command 
of  the  squadron  were  unlawful,  and  the  recapture  of  the  Levant,  under 
the  circumstances  and  in  the  place  it  occurred,  a  high-handed  and 
unjustifiable  proceeding.  But  Portugal  alone  had  a  right  to  complain 
of  his  conduct  to  the  government  he  represented,  and  in  whose  behalf 
he  committed  the  act.  The  claimant,  through  the  government  of  the 
United  States,  whose  flag  he  carried,  could  only  complain  to  Portugal 
of  her  conduct  in  failing,  through  weakness,  timidity,  or  favor  to  onr 
enemy,  to  maintain  her  neutrality,  and  secure  to  our  citizens  the 
protection  they  had  a  right  to  expect  from  a  neutral  sovereign  within 
his  territory. 

So  far  as  the  case  before  us  develops  the  facts,  it  does  not  appear 
that  Portugal  ever  obtained  from  Great  Britain  any  reparation  or 
indemnity  for  this  act,  and  it  is  certain  that  the  United  States  received 
none  from  Portugal.  Whether  the  claimant  can  maintain  this  suit 
against  the  United  States  will  depend  upon  whether  the  claimants 
had  such  a  right  in  the  captured  ship  as  required  the  United  States  to 
prosecute  and  enforce  it  against  Portugal.  And  also  whether,  if  the 
United  States  released  and  relinquished  the  claim  on  considerations 
of  public  policy,  they  became  liable  for  the  amount  to  the  claimants. 

The  argument  on  behalf  of  the  claimants  assumes  that  the  captors 
had  a  right  and  title  to  the  captured  ship,  and  of  which  they  were 
illegally  divested  or  deprived. 

There  is  no  doubt  if  this  vessel  had  reached  a  port  of  the  United 
States  she  would  have  been  condemned  as  a  good  prize  to  the  claim- 
ants ;  for  the  Ct/ane,  taken  in  the  same  engagement  and  at  the  same 
time,  was  actually  so  condemned.  The  title  to  property  lawfully 
taken  in  war  may,  xipon  general  principles,  be  considered  as  imme- 
diately divested  out  of  the  original  owner  and  transferred  to  the  captor. 
As  to  personal  property,  it  is  considered  as  lost  to  the  owner  as  soon 
as  the  enemy  has  acquired  a  firm  possession,  which  is  in  general 
considered  as  taking  place  after  the  lapse  of  twenty-four  hours,  or 
after  the  booty  has  been  carried  into  a  place  of  safety,  infra  pro's idia. 
Grotius,  Lib.  III.  cap.  6,  §  3 ;  cap.  9,  §  14;  Klilber  Droit  des 
Gens.  Moderne  de  I'Europe,  §  2.54;  Vattel,  bk.  III.  cap.  14,  §  19G ; 
cap.  14,  §  209 ;  Heffter  das  Europiiische  Volkerrech,  §  136. 

It  is  upon  authorities  like  the  foregoing  that  the  right  and  title  of 
the  claimants  in  the  present  case  is  predicated.  But  these  general 
expressions  refer  to  the  time  when  the  title  of  the  original  owner  is 
divested,  rather  than  when  the   right  of  the   individuals   making  the 


CHAP.  III.]  COMMODORE   STEWART's   CASE.  915 

capture  vests.  Attention  for  a  moment  to  the  foundation  and  origin 
of  the  right  of  the  individual  to  the  captured  property  will  assist  us  in 
the  solution  of  this  question.  That  right  is  acquired  not  in  virtue  of  the 
seizure  of  it  as  enemies'  property,  but  by  grant  of  the  sovereign  whose  ' 
commission  the  captor  bears.  Judge  Story  says  :  "  It  is  now  clear  that 
all  captures  in  war  inure  to  the  sovereign,  and  become  private  property 
only  by  his  grant."      The  Emulous,  1  Gall.  569  ;  11  East.  619. 

The  right  all  to  captures  from  the  earliest  times  has  vested  primarily 
in  the  sovereign,  and  no  individual  can  have  any  interest  in  a  prize, 
whether  made  by  a  public  or  private  armed  vessel,  except  that  which 
he  receives  from  the  bounty  of  the  State.  Law  of  Marine  Warfare, 
p.  374;  Valin  Com.  II.  235;  Bynk.,  cap.  17;  Sir  L.  Jenkins's  Work, 
p.  711.  An  interest  in  a  prize  can  only  be  derived  from  the  govern- 
ment. 1  Phillips  on  Insurance,  182,  §  320;  The  Joseph,  1  Gall.  558; 
11  East.  428.  It  is  even  denied  that  the  individual  captors,  prior  to  1 
condemnation,  have  any  insurable  interest  in  the  captured  property. 
Eouth  V.  Thompson,  11  East.  432;  DeVause  v.  Stede,  6  Bingh.  N. 
C.  370;  Li(cena  v.  Crawford,  3  B.  &  P.  75  ;  5  Id.  323;  Crawford  v. 
Hunter,  8  T.  Eep.  13. 

The  principle  applicable  to  this  case  to  be  extracted  from  the 
authorities  cited  is,  that  by  the  capture  of  this  ship  the  property  to 
it  vested  in  the  United  vStates,  and  whatever  right  to  or  title  in  it  the 
claimants  acquired  must  be  derived  from  their  sovereign  authority. 
Such  a  grant  is  set  up  under  the  act  of  Congress  approved  the  23d 
April,  1800,  §  5,  wdiich  is  as  follows : 

"  The  proceeds  of  all  ships  and  vessels,  and  the  goods  taken  on 
board  of  them,  which  shall  be  adjudged  good  prize,  shall,  when  of 
equal  or  superior  force  to  the  vessel  or  vessels  making  the  capture,  be 
the  sole  property  of  the  captors ;  and  when  of  inferior  force,  shall  be 
divided  equally  between  the  United  States  and  the  officers  and  men 
making  the  capture."     Bright.  Dig.  p.  665,   pi.  78. 

The  property  of  the  original  owner  cannot  be  considered  as  fully  I 
divested  until  there  has  been  a  condemnation  by  a  regular  prize  tribunal 
having  jurisdiction  of  the  subject-matter.  Until  such  adjudication  is 
made,  the  right  of  recapture  continues,  as  well  as  the  right  of  post 
llmhil'i.  And  in  case  the  captured  vessel  escapes,  is  recaptured,  or  is 
voluntarily  discharged,  the  jurisdiction  of  the  prize  court  is  lost,  and 
all  rights  acquired  by  the  capture  are  divested.  1  Kent's  Com.  359. 
The  Supreme  Court  of  the  United  States  say:  ''The  right  of  capture 
is  a  limited  right,  is  derived  from  the  law,  and  is  subject  to  all  the 
restrictions  the  law  imposes,  and  is  to  be  exercised  in  the  manner  in 
which  its  wisdom  has  prescribed."     The  Thomas  Gibbons,  3  Cranch,  421, 

The  question  of  prize  may  always  be  contested,  either  on  account  of 


916  BELLIGERENTS   AND   NEUTRALS.  [PART  11. 

the  cliaracter  of  the  vessel  or  cargo,  the  conduct  of  the  captors,  or 
the  place  aud  circumstances  where  and  under  which  the  capture  was 
made;  and  until  their  right  is  established  by  the  sentence  of  a  compe- 
tent tribunal,  the  captors  are  not  invested  with  the  property.  Yinceu's 
Exposition  raisonnee  de  la  Legislation  (Jommerciale,  ch.  17. 

A  citizen  may  seize  the  property  of  an  enemy  wherever  found,  and 
it  rests  with  the  sovereign  w^hether  he  will  ratify  and  consummate 
the  capture  by  proceeding  to  condemnation.  Per  Story,  J.,  The 
Emulous,  1  Gall.  53G. 

These  authorities  are  very  full  and  conclusive  that  this  capture, 
whatever  right  it  conferred  or  property  it  changed,  was  in  favor  of  the 
United  States.  It  remains  to  inquire  what  property  or  interest  the 
individual  captors  acquired  by  the  surrender  of  the  ship  and  her 
conveyance  to  this  neutral  port.  The  claimants  contend  that  under 
the  act  cited  they  were  once  invested  with  the  right  to  the  vessel,  that 
it  operated  as  an  immediate  transfer  of  the  right  of  tlie  United  States 
to  them.  Such  a  position  is  assumed,  we  think,  without  due  attention 
to  the  form  of  the  grant  and  the  character  of  the  grantor.  It  being 
the  grant  of  the  sovereign,  it  is  contrary  to  the  general  rule  to  be  most 
strongly  against  the  grantee  and  in  favor  of  the  grantor.  It  can  only 
take  eifect  when  its  stipulations,  limitations,  and  conditions  have  been 
complied  with.  The  act  prescribes  that  those  vessels  or  cargoes 
^^ which  shall  he  adjudged  r/ood  prize"  shall  be  the  property  of  the 
captors.  This,  of  course,  upon  the  rule  we  have  stated,  excludes  all 
such  as  have  not  been  adjudged  good  prize  ;  for  exyressio  iinlus,  est 
exclusio  alterius.  The  title  depends  upon  a  grant,  and  must  conform 
to  it  and  comply  with  its  conditions.  The  condition  in  this  case  is, 
that  it  shall  be  brought  in  and  condemned  as  lawful  prize  before  any 
title  accrues.  Chief  Justice  Taney  says  :  "All  captures  y«re  ^e//i  are 
for  the  benefit  of  the  sovereign  under  whose  authority  they  were 
made;  and  the  validity  of  the  seizure,  and  the  question  of  prize  or  no 
yrize^  can  be  determined  in  his  own  courts  only  upon  which  he  has 
conferred  jurisdiction  to  try  the  question."  Jecker  v.  Montf/omeri/,  13 
How.  515.  To  the  same  effect  is  the  judgment  and  opinion  of  Sir 
William  Scott.  That  eminent  admiralty  judge  says:  "All  grants  of 
the  sovereign  are  to  be  strictly  construed  against  the  grantee,  contrary 
to  the  usual  policy  of  the  law  in  the  consideration  of  grants  ;  and 
upon  this  just  ground,  that  the  prerogatives,  rights,  and  emoluments 
of  the  sovereign  being  conferred  iipon  him  for  great  purposes  and  for 
public  use,  it  shall  not  be  intended  that  such  prerogatives,  rights,  and 
emoluments  are  diminished  by  any  grant  beyond  what  such  grant  by 
necessary  and  unavoidable  construction  shall  take  ataay.'^  The  Jiebekahy 
1  C.  Rob.  230. 


CHAP.  III.]  COMMODORE    STEWART'S    CASE.  917 

Tlie  case  which  bears  most  strongly  on  the  question  in  liand  is  the 
judgment  of  the  same  great  jurist  in  the  case  of  Tlie  Elsahe,  5  Kob. 
173.  In  that  case  there  was  a  capture  of  a  vessel  y»re  belli.  She  was 
brought  into  an  English  port  and  libelled,  but  before  adjudication,  on 
the  application  of  the  diplomatic  representative  of  the  nations  whose 
citizens  were  principally  interested,  the  executive  government  of  Great 
Britain  dii'ected  the  lords  of  the  admiralty  to  release  the  ship  and 
hand  her  over  to  the  original  owners.  The  case  rose  on  a  motion  in 
the  High  Court  of  Admiralty  to  proceed  to  adjudication  upon  the 
rights  of  the  captors,  notwithstanding  the  release  and  discharge  of 
the  ship.  The  grounds  taken  on  the  part  of  the  libellants  were  that 
the  Crown  had  not  the  right  to  release  ;  because  such  a  right  and 
interest  had  vested  in  the  captors  at  the  time  of  seizure,  under  tlie 
grant  of  prize,  &c.,  as  to  entitle  them  to  proceed  to  adjudication, 
notwithstanding  an  order  of  release  on  the  part  of  the  government. 
In  delivering  the  opinion,  that  great  judge  says:  "  It  is  admitted  on 
the  part  of  the  captors  that  their  claim  rests  wholly  on  the  order  of 
council,  the  proclamation,  and  the  prize  act.  It  is  not  (as  it  cannot 
be)  denied  that,  independent  of  these  instruments,  the  whole  subject- 
matter  is  in  the  Crown,  as  well  in  point  of  interest  as  in  point  of  \ 
authority.     Prize  is  altogether  a  creature  of  the  Crown.  ' 

'*'  Xo  man  has  or  can  have  any  interest  but  what  he  takes  as  the 
mere  gift  of  the  Crown.  Beyond  the  extent  of  that  gift  he  has 
notliing.  This  is  the  principle  of  law  on  the  subject,  and  founded  on 
the  wisest  reasons.  The  right  of  making  war  and  peace  is  exclusively 
in  the  Crown.  The  acquisitions  of  war  belong  to  the  Crown  ;  and  the 
disposal  of  these  acquisitions  may  be  of  the  utmost  importance  for 
the  purposes  both  of  war  and  peace.  This  is  no  peculiar  doctrine  of 
our  Constitution  ;  it  is  universally  received  as  a  necessary  principle  of 
public  jurisprudence  by  all  writers  on  the  subject,  hello  prirta  ceda.iit 
relpuhlicie.  It  is  not  to  be  supposed  that  this  wise  attribute  of  sover- 
eignty is  conferred  without  reason ;  it  is  given  for  the  purpose 
assigned,  that  the  power  to  whom  it  belongs  to  decide  on  peace  or 
war  may  use  it  in  the  most  beneficial  manner  for  the  purposes  of  both. 

"A  general  presumption  arising  from  these  considerations  is,  that 
government  does  not  mean  to  divest  itself  of  this  universal  attribute 
of  sovereignty,  conferred  for  such  purposes,  unless  it  is  so  clearly  and 
unequivocally  expressed.  In  conjunction  with  this  universal  presump- 
tion must  be  taken  also  the  wise  policy  of  our  peculiar  law,  which 
interprets  the  grants  of  the  Crown,  in  this  respect,  by  other  rules  than 
those  which  are  applied  in  the  construction  of  the  grants  of  individuals. 
Against  an  individual  it  is  presumed  that  he  meant  to  convey  a  benefit 
with  the  utmost  liberality  that  his  words  will  bear.     It  is  different  to 


918  BELLIGERENTS   AND   NEUTKALS.  [PART  H. 

the  public  in  which  person  an  interest  remains,  whether  in  the  grantor 
or  the  taker.  With  regard  to  the  grant  of  the  sovereign  it  is  far 
otherwise.  It  is  not  held  by  the  sovereign  himself  as  private  property  ; 
and  no  alienation  shall  be  presumed  except  that  which  is  clearly  and 
indisputably  expressed." 

Having  shown  that  all  prizes  vest  in  the  Crown  —  that  the  right  of 
the  captors  rests  only  on  the  gift  of  the  Crown,  in  the  order  in  council, 
the  proclamation,  and  the  prize  acts  —  he  proceeds  to  show  that  it  was 
merely  a  right  to  seize  and  bring  in  for  adjudication  a  certain  description 
of  property,  and  that  the  interest  of  the  captors  in  the  prizes  only 
I'  vested  when  condemnation  took  place,  and  that  prior  to  such  time  the 
sovereign  could  dispose  of  them  as  he  saw  proper,  without  impinging 
upon  the  vested  rights  of  the  people. 

If  these  principles  are  sound,  and  we  think  they  are  sustained  by 
the  strongest  reasons  and  the  highest  authorities,  it  must  follow  that 
this  suit  cannot  be  maintained  by  this  claimant,  for  want  of  title  to 
and  interest  in  the  subject-matter  in  respect  of  which  the  claim  is 
made. 
1  By  the  seizure  of  the  ships  they  acquired  a  right  to  carry  them  into 
a  port  of  this  country  for  adjudication.  It  is  the  condemnation  under 
the  act  which  gives  the  interest,  and  not  the  seizure.  The  capture 
vests  it  in  the  United  States  —  the  condemnation  in  the  captors.  It 
follows,  as  a  necessary  consequence  from  this,  that  there  never  having 
been  a  condemnation  by  a  competent  tribunal,  there  never  has  been 
any  legal  right  vested  in  the  claimants.  Nor  could  there  be  any  such, 
for  it  required  the  judgment  of  a  competent  prize  tribunal  to  vest  that 
right  in  them  under  the  act  of  Congress.  Xo  other  court  is  competent 
to  supply  the  want  of  it,  because  that  is  an  essential  condition  of  the 
grant,  and  cannot  be  supplied  by  anything  else.  What  follows  then  ? 
Simply  this,  that  when  the  Levant  was  permitted  to  be  unlawfully 
recaptured  by  the  Portuguese  Government,  in  violation  of  the  rights 
of  hospitality,  as  well  as  her  neutralit}',  the  sole  right  to  and  interest 
in  the  captured  prize  was  in  the  United  States  alone.  The  injury  was 
committed  against  her  rights  ;  and  whether  she  should  demand  repara- 
tion in  any  form,  or  to  any  extent,  was  a  matter  to  be  dictated  and 
controlled  by  considerations  of  public  interest  and  policy  alone,  and 
not  by  any  considerations  of  private  interest  or  grievance,  for  nono 
existed. 

Tlie  case  of  the  brig  Armstrong,  decided  by  a  majority  of  this  court 
some  years  ago,  lias  been  pressed  upon  our  attention  as  ruling  this 
case.  We  do  not  think  so.  The  question  upon  which  this  case  is 
ruled  did  not  and  could  not  arise  in  that  case.  There  was  no  question 
of  prize  in  tliat  cause.     It  was   the  destruction  of  a  ship  owned  by 


CHAP,  in.]  THE   "  FLAD   OYEX."  919 

private  individuals.  I  may,  however,  be  permitted  to  say  for  myself, 
that  the  very  able  opinion  delivered  by  Judge  Grilchrist  has  failed  to 
satisfy  me  of  the  soundness  of  the  conclusion  reached  in  that  case. 

Congress  seems  to  have  taken  much  the  same  view  of  the  questions 
involved  that  we  do  now  when  they  passed  the  act  giving  the  claimants 
the  sum  of  twent^^-five  thousand  dollars  for  the  capture  of  the  Levant. 
That  the  capture  was  an  act  of  general  merit  and  heroism  is  universally 
admitted.  And  we  confess  that  it  would  have  afforded  us  sincere 
gratification  if  the  law  and  the  facts  of  this  case  had  permitted  us  to 
convey  a  more  substantial  acknowledgment  of  the  great  services 
rendered  by  the  venerable  and  illustrious  commander  of  the  Constitu- 
tion and  his  gallant  crew,  who  have  contributed  so  much  to  make  our 
flag  respected  on  the  seas,  and  to  the  lasting  renown  of  our  country. 
But  we  are  restrained  and  guided  by  the  law  of  the  case,  leaving  all 
other  considerations  for  that  department  of  the  government  to  which 
they  appropriately  belong. 

We,  therefore,  are  compelled  to  sustain  the  demurrer  and  dismiss 
the  petition.^ 


THE   "FLAD   OYEN." 
High  Court  of  Adiiir.altt,  1799. 

(1  C.  Robinson,  114.) 

Judgment.  —  Sir  "W.  Scott  :  ^  — 

This  is  the  case  of  a  ship  taken  by  a  French  privateer,  and  carried 
into  the  port  of  Bergen  in  Norway,  where  it  appears  she  underwent  a 
sort  of  process,  which  terminated  in  a  sentence  of  condemnation,  pro- 
nounced by  the  French  consul ;  and  under  that  sentence,  she  is  asserted 
to  have  been  transferred  to  the  present  neutral  proprietor. 

But  another  question  has  arisen  in  this  case,  upon  which  a  great 
deal  of  argument  has  been  employed ;  namely,  whether  the  sentence 
of  condemnation  which  was  pronounced  by  the  French  consul,  is  of 

1  This  is  the  second  occasion  on  which  the  famous  frigate  appeared  in  court.  Tiie 
other  case  of  The  Constitution  will  be  found  ante,  218.  For  a  description  of  tlie  naval 
battle  out  of  which  Commodore  Stewart's  Claim  arose,  see  HoUis,  T/te  Frigule  Con- 
stitution (1901),  pp.  196-215. 

It  may  be  of  interest  to  note  that  Stewart  remained  in  active  service  until  lie  was 
retired  as  senior  commodore  in  1856  and  flag-officer  in  1860;  that  on  July  16,  1862,  he 
was  commissioned  rear-admiral  in  his  eighty-fourth  year,  and  that  he  remained  on 
waiting  orders  until  his  deatli,  in  1869.  His  fighting  qualities  as  well  as  his  name 
appeared  in  his  grandson,  the  late  Charles  Stewart  Parnell  —  Ed. 

2  The  statement  of  facts  and  part  of  the  judgment  have  been  omitted.  —  Eu. 


920  BELLIGERENTS   AND   NEUTRALS.  [PART  11. 

such  legal  authority  as  to  transfer  the  vessel,  supposiug  the  purchase 
to  liave  been  bona  fide  made?  I  directed  the  counsel  for  the  claimants 
to  begin;  because,  the  sentence  being  of  a  species  altogether  new,  it 
lay  upon  them  to  prove  that  it  was  nevertheless  a  legal  one. 

It  has  frequently  been  said,  that  it  is  the  peculiar  doctrine  of  the 
law  of  England  to  require  a  sentence  of  condemnation,  as  necessary  to 
transfer  the  property  of  prize  ;  and  that  according  to  the  practice  of 
some  nations  twenty-four  hours,  and  according  to  the  practice  of  others 
bringing  infra  presidia,  is  authority  enough  to  convert  the  prize.  I 
take  that  to  be  not  quite  correct ;  for  I  apprehend,  that  by  the  general 
practice  of  the  law  of  nations,  a  sentence  of  condemnation  is  at  pres- 
ent deemed  generally  necessary  ;  and  that  a  neutral  purchaser  in 
Europe,  during  war,  does  look  to  the  legal  sentence  of  condemnation 
as  one  of  the  title-deeds  of  the  ship,  if  he  buys  a  prize  vessel.  I 
believe  there  is  no  instance  in  which  a  man  liaving  purchased  a  prize 
vessel  of  a  belligerent,  has  thought  liimself  quite  secure  in  making 
that  purchase,  merely  because  the  ship  had  been  in  the  enemy's  pos- 
session twenty-four  hours,  or  carried  infra  pr-esldia  :  the  contrary  has 
been  more  generally  held,  and  the  instrument  of  condemnation  is 
amongst  those  documents  which  are  most  universally  produced  by  a 
neutral  purchaser;  that  if  she  has  been  taken  as  prize,  it  should 
ajipear  also  that  she  has  been,  in  a  proper  judicial  form,  subjected  to 
adjudication. 

Now,  in  what  form  have  these  adjudications  constantly  appeared  ? 
They  are  the  sentences  of  courts  acting  and  exercising  their  functions 
in  the  belligerent  country;  and  it  is  for  the  very  first  time  in  tlie 
world,  that  in  the  year  1799,  an  attempt  is  made  to  impose  upon  the 
court  a  sentence  of  a  tribunal  not  existing  in  the  belligerent  country, 
but  of  a  person  pretending  to  be  authorized  within  the  dominions  of  a 
neutral  country :  in  my  opinion,  if  it  could  be  shown,  that,  regarding 
mere  speculative  general  principles,  such  a  condemnation  ought  to  be 
deemed  sufficient ;  tliat  would  not  be  enough;  more  must  be  proved; 
it  must  be  shown  that  it  is  conformable  to  the  usage  and  practice  of 
nations. 

A  great  part  of  the  law  of  nations  stands  on  no  other  foundation : 
it  is  introduced,  indeed,  by  general  princii)les  ;  but  it  travels  with 
those  general  princii)les  only  to  a  certain  extent:  and,  if  it  stops  there, 
yon  are  not  at  liV)orty  to  go  farther,  and  to  say,  that  mere  general  specu- 
lations would  bear  you  out  in  a  further  ])rogress  :  thus,  for  instance, 
on  mere  general  principles  it  is  lawful  to  destroy  your  enemy  ;  and 
mere  general  principles  make  no  great  difference  as  to  the  manner  by 
wliich  this  is  to  be  effected  ;  but  the  conventional  law  of  mankind, 
whicli  is  evidenced  in  their  practice,  does    make  a  distinction, .  and 


CHAP,  III.]  THK   "  FLAD   OYEN."  921 

allows  some,  and  prohibits  other  modes  of  destruction;  and  a  btdlig- 
erent  is  bound  to  confine  himself  to  those  modes  which  the  common 
practice  of  mankind  has  employed,  and  to  relinquish  those  which  the 
same  practice  has  not  brought  w^ithin  the  ordinary  exercise  of  war, 
however  sanctioned  by  its  principles  and  purposes. 

Now,  it  having  been  the  constant  usage,  that  the  tribunals  of  the 
law  of  nations  in  these  matters  shall  exercise  their  functions  within  i 
the  belligerent  country;  if  it  was  proved  to  me  in  the  clearest  manner,  ' 
that  on  mere  general  theory  such  a  tribunal  might  act  in  the  neutral 
countr}^ ;  I  must  take  my  stand  on  the  ancient  and  universal  practice 
of  mankind  ;  and  say  that  as  far  as  that  practice  has  gone,  1  am  will- 
ing to  go;  and  where  it  has  thought  proper  to  stop,  there  I  must  stop 
likewise. 

It  is  my  dut}'  not  to  admit,  that  because  one  nation  has  thought 
proper  to  depart  from  the  common  usage  of  the  world,  and  to  meet 
the  notice  of  mankind  in  a  new  and  unprecedented  manner,  that  I  am 
on  that  account  under  the  necessity  of  acknowledging  the  efficacy  of 
such  a  novel  institution  ;  merely  because  general  theor}-  might  give  it 
a  degree  of  countenance,  independent  of  all  practice  from  the  earliest 
history  of  mankind.  The  institution  must  conform  to  the  text  law, 
and  likewise  to  the  constant  usage  upon  the  matter  ;  and  when  I  am  ' 
told,  that  before  the  present  war,  no  sentence  of  this  kind  has  ever 
been  produced  in  the  annals  of  mankind;  and  that  it  is  produced  by 
one  nation  only  in  this  war  ;  I  require  nothing  more  to  satisfy  me,  that 
it  is  the  duty  of  this  court  to  reject  such  a  sentence  as  inadmissible. 

Having  thus  declared  that  there  must  be  an  antecedent  usage  upon 
the  subject,  I  should  think  myself  justified  in  dismissing  this  matter 
without  entering  into  any  farther  discussion.  But  even  if  we  look 
farther,  I  see  no  sufficient  ground  to  say,  that  on  mere  general  prin- 
ciples such  a  sentence  could  be  siistained  :  proceedings  upon  prize  are 
proceedings  in  rem  ;  and  it  is  presumed,  that  the  body  and  substance  j 
of  the  thing  is  in  the  country  which  has  to  exercise  the  jurisdiction.  I 
I  have  not  heard  any  instances  quoted  to  the  contrary,  excepting  in  a 
very  few  cases  which  have  been  urged,  argumentatively,  in  the  way 
which  is  technically  called  ad  liominem,  being  cases  of  condemnations 
of  British  prizes  carried  into  the  ports  of  Lisbon  and  Leghorn  ;  but  in 
those  the  condemnations  were  pronounced  by  the  High  Court  of 
Admiralty  in  England.  The  only  cases  are  of  two  ships  carried  into 
foreign  ports,  and  condemned  in  England  by  this  court ;  the  very 
infrequency  of  such  a  practice  shows  the  irregularity  of  it.  Upon 
cases  in  the  practice  of  other  nations  antecedent  to  the  present  war, 
the  advocates  have  been  silent. 

Now,  as  to  these  condemnations  of  prizes  carried  to  Lisbon  and 


922  BELLIGERENTS   AND   NEUTRALS.  [PART  IL 

Leghorn,  it  has  been  said,  that  if  the  courts  of  Great  Britain  venture 
this  degree  of  irregularit}^,  other  countries  have  a  right  to  go  farther, 
Tliat  consequence  I  deny  :  the  true  mode  of  correcting  the  irregular 
practice  of  a  nation  is,  by  protesting  against  it ;  and  by  inducing  that 
country  to  reform  it :  it  is  monstrous  to  suppose,  that  because  one 
country  has  been  guilty  of  an  irregularity,  every  other  country  is  let 
loose  from  the  law  of  nations;  and  is  at  liberty  to  assume  as  much  as 
it  thinks  fit. 

Upon  these  ports  of  Lisbon  and  Leghorn  it  is  to  be  remarked,  that 
they  have  a  peculiar  and  discriminate  character,  a  character  that  to 
a  certain  degree  assimilates  them  to  British  ports :  the  British  exist 
there  in  a  distinct  character,  under  the  protection  of  peculiar  treaties; 
and  with  respect  to  Portugal,  those  treaties  go  so  far  as  to  engage,  that 
if  a  ship  belonging  to  one  country  shall  be  brought  by  its  enemy  into 
the  ports  of  another,  which  happens  to  be  at  peace,  tliis  neutral  coun- 
try shall  be  bound  to  seize  that  ship,  and  restore  it  to  its  ally :  to  be 
sure  no  covenant  can  have  more  the  effect  of  giving  the  ports  of  Eng- 
land and  Portugal  a  reciprocal  relation  of  a  very  peculiar  sort  —  to 
make  the  British  ports  Portuguese  ports,  and  the  Portuguese  ports 
British  ports  to  a  certain  degree.  Now,  unless  I  am  given  to  under- 
stand that  peculiar  treaties  between  France  and  Denmark  have  im- 
pressed such  a  distinctive  character  upon  the  port  of  Bergen,  I  cannot 
allow  that  it  can  be  considered,  on  the  mere  footing  of  general  neutral- 
ity, to  be  a  French  port,  exactly  in  the  same  manner  in  which  London 
may  be  considered  as  a  Portuguese  port,  or  Lisbon  as  a  British  port. 

But  supposing  this  possible,  still  it  would  not  follow  that  such  con- 
demnations could  be  pleaded  as  authorities  in  the  present  case  ;  because, 
in  the  first  place,  the  validity  of  such  condemnations  themselves  may 
be  the  subject  of  reasonable  doubt.  For  it  by  no  means  appears  that 
the  enemy,  or  neutrals,  who  might  have  an  interest  in  contesting  them, 
have  ever  acknowledged  their  validity.  Whoever  purchases  under 
such  sentences  must  be  content  to  purchase  them  subject  to  all  the 
questions  that  may  arise  upon  their  sufficiency. 

But,  2dly,  Supposing  that  no  doubts  could  be  entertained  respecting 
the  sufficiency  of  such  sentences ;  it  by  no  means  follows  that  the 
efficacy  of  the  present  sentence  can  be  supported  :  there  the  tribunal 
is  acting  in  the  country  to  which  it  belongs,  and  witli  whose  authority 
it  is  armed.  Here  a  person,  utterly  naked  of  all  authority  except  over 
the  subjects  of  his  own  country,  and  possessing  that  merely  by  the 
indulgence  of  the  country  in  which  lie  resides,  pretends  to  exercise  a 
jurisdiction  in  a  matter  in  which  the  subjects  of  many  otlier  States 
(may  be  concerned.  No  such  authority  was  ever  conceded  by  any 
icountry  to  a  foreign  agent  of  any  description  residing  within  it:   and 


CHAP.  III.]  THE   "  FLAD   OYEN."  923 

least  of  all  could  such  an  authority  be  conceded  in  the  matter  of  prize 
of  war  —  a  matter  over  which  a  neutral  country  has   no  cognizance 
whatever,  except  in  the  single  case  of  an  infringement  of  its  own  ter- 
ritory ;  and  in  which  such  a  concession  of  authority  cannot  be  made  ' 
without   departing   from    the  duties,   and   losing   the   benefits,  of  its  ^ 
neutral  character. 

Mark  the  consequences  which  must  follow  from  such  a  pretended 
concession  :  observe  in  the  present  case  how  it  would  affect  the  neutral 
character  of  the  ports  in  the  north  !  If  France  can  station  a  judge  of 
the  Admiralty  at  Bergen,  and  can  station  there  its  cruisers  to  carry 
in  prizes  for  that  judge  to  condemn  ;  who  can  deny  that  to  every  pur- 
pose of  hostile  mischief  against  the  commerce  of  England,  Bergen  will 
differ  from  Dunkirk,  in  no  other  respect  than  this,  that  it  is  a  port  of 
the  enemy  to  a  much  greater  extent  of  practical  mischief.  To  make 
the  ports  of  Korway  the  seats  of  the  French  tribunals  of  war,  is  to 
make  the  adjacent  sea  the  theatre  of  French  hostility. 

It  gives  one  belligerent  the  unfair  advantage  of  a  new  station  of 
war,  whicli  does  not  properly  belong  to  him  ;  and  it  gives  to  the  other 
the  unfair  disadvantage  of  an  active  enemy  in  a  quarter  where  no 
enemy  would  naturally  be  found.  The  coasts  of  jS'orway  could  no 
longer  be  approached  by  the  British  merchant  with  safety,  and  a  sus- 
pension of  commerce  would  soon  be  followed  by  a  suspension  of  amity. 

Wisely,  therefore,  did  the  American  Government  defeat  a  similar 
attempt  made  on  them,  at  an  earlier  period  of  the  war:  they  knew  that 
to  permit  such  an  exercise  of  the  rights  of  war,  within  their  cities, 
would  be  to  make  their  coasts  a  station  of  hostilit3\^ 

Whether  the  government  of  Denmark  has  shown  equal  vigilance  in 
observing,  or  equal  indignation  in  repelling  the  attempt,  is  more  than 
I  am  warranted  to  assert :  but  though  the  publicity  of  the  transaction 
in  the  town  of  Bergen  may  subject  the  police  of  that  place  to  some 
degree  of  observation,  I  see  nothing  in  the  papers  which  issue 
immediately  from  the  royal  authority  that  at  all  affects  the  govern, 
ment  itself  with  the  knowledge  and  approbation  of  the  fact ;  and 
indeed  it  would  be  indecent  to  suppose  that  a  country,  standing  upon 
the  footing  of  ancient  and  friendly  alliance  to  this  country,  could  have 
given  its  sanction  to  a  measure  so  full  of  hostility  to  its  friend,  and 
of  possible  inconvenience  to  itself:  I  must,  therefore,  deem  the  act  of 

1  Tlie  incident  referred  to  was  the  attempt  in  1793  of  the  French  minister,  "  Citi- 
zen "Genet,  to  offer  commissions  to  citizens  of  tlie  United  States  to  cruise  in  tlie 
service  of  France  against  Great  Britain,  to  fit  out  privateers,  to  set  up  French  con- 
sular prize  courts,  so  tliat  prizes  brought  in  could  be  condemned  in  American  ports, 
and  otherwise  to  emploj'  the  territory  of  this  country  for  belligerent  purposes. 
5  Moore,  Int.  Arb.  4404-4411;  Taylor,  Int.  Law,  §  640.  See  also  Hall,  Int.  Law, 
§213.  — Ed. 


924  BELLIGERENTS   AND   NEUTRALS.  [PAKT  H, 

this  French  consul  a  licentious  attempt  to  exercise  the  rights  of  war 
within  the  bosom  of  a  neutral  countr}^  where  no  such  exercise  has 
ever  been  authorized. 


ODDY  V.    BOVILL. 

King's  Bench,  1802. 

(2  EaM,  473.) 

In  the  war  between  Great  Britain  and  France,  Spain  was  in  1799 
an  ally  of  the  latter  power.  A  prize  was  taken  by  a  French  privateer, 
carried  into  a  port  of  Spain,  and  condemned  as  enemy's  property  by  a 
French  court  sitting  in  Spain. ^ 

Law^kexce,  J.:  —  The  question  is,  Whether  this  sentence  of  con- 
demnation be  conclusive  evidence  tliat  the  property  insured  was 
British,  and  consequently,  that  the  warranty  of  its  being  neutral  was 
not  complied  with?  The  argument  was  attempted  to  be  carried  into 
a  wider  field  than  we  think  it  fit  now  to  enter  into,  since  the  case  of 
Hughes  V.  Cornelius,  T.  Ray.  47.3;  Skin.  59,  and  2  Show.  232,  and  a 
long  string  of  authorities  which  have  followed  that  decision.  We 
must  now  therefore  take  it  for  granted,  that  if  tliis  sentence  were 
given  by  a  court  of  competent  jurisdiction,  it  is  conclusive  upon  the 
point  then  in  judgment,  namely,  against  the  neutrality  of  the  prop- 
erty. The  case  of  the  Flad  Oi/en,  has  been  made  the  basis  of  the 
argument,  to  show,  that  unless  the  prize  court  were  constituted 
according  to  the  law  and  practice  of  nations,  it  could  have  no  juris- 
diction. If  there  were  no  other  case  on  the  subject  determined  by 
the  same  learned  judge,  to  explain  how  far  he  meant  to  go  in  that 
case,  it  might  be  doubtful,  from  some  expressions  there  used,  whether 
it  did  not  extend  to  a  case  circumstanced  like  the  present:  but  if  we 
look  at  his  other  decisions  on  this  subject,  particuharly  in  that  of  the 
Christopher  [2  C.  Rob.  209],  though  I  do  not  mean  to  say  that  it  is 
directly  in  point,  it  sufficiently  appears  from  the  reasons  assigned  by 
him  in  giving  judgment,  to  what  extent  he  meant  the  doctrine  laid 
down  by  him  in  the  Flad  Oi/en  case  should  be  understood;  and  that 
I  he  did  not  intend  to  deny  the  legality  of  such  sentences  of  condemna- 
tion by  the  captors  in  the  country  of  a  co-belligerent  or  ally  in  the 
war;  because,  as  he  observes,  there  is  a  common  interest  between 
sufdi  on  the  subject,  and  both  governments  may  be  presumed  to 
autliorize  any  measures  conducing  to  give  effect  to  tlieir  arms,  and 
to  consider  each    other's  ports  as  mutually  subservient.     This  very 

^  Short  statement  substituted  for  that  of  original  report.  —  Ed. 


CHAP.  III.]  ODDY    V.   BOVILL.  025 

question  appears  to  have  arisen  in  several  subsequent  cases;  and 
in  the  case  of  the  Betsy  Kriiger,  in  August,  1800,  seems  to  have  been 
considered  by  the  advocates  as  so  thoroughly  understood  and  settled, 
that  the  question  of  law  was  waived,  as  one  not  to  be  discussed;  and 
the  court,  proceeding  on  the  ground  that  the  condemnation  was  legal, 
directed  further  proof  to  be  made  of  the  fact  of  the  transfer.  We 
find  then  this  question  already  determined  by  a  court  having  peculiar 
jurisdiction  in  cases  of  this  sort,  of  which  we  have  only  incidental 
jurisdiction.  That  determination  therefore  is  as  conclusive  on  us,  as 
to  the  proper  rule  of  decision,  as  a  judgment  of  the  common  law  courts 
on  a  question  of  real  property  would  be  on  the  civil  law  courts. 

Le  Blanc,  J. :  —  The  subsequent  cases  referred  to  are  explanatory 
of  the  opinion  delivered  by  Sir  W.  Scott  in  the  case  of  the  Flad 
Oijen,  and  show  that  he  considered  that  there  was  a  material  distinc- 
tion between  a  sentence  of  condemnation,  pronounced  by  the  authority 
of  the  capturing  country  in  the  state  of  a  co-belligerent,  and  one  so 
pronounced  in  a  neutral  country.  Now  this  is  the  case  of  a  sentence 
of  condemnation  in  the  country  of  a  belligerent  power,  an  ally  of  the 
captors;  and  is  exactly  like  the  cases  of  The  Harmony,  2  Rob.  210 n., 
the  Adelaide  [Id.],  and  the  Betsy  Krur/er  [Id.].  The  first  was  a  con- 
demnation by  the  French  commissary  of  marine  at  Kotterdam,  of  a 
British  prize  taken  and  carried  into  Helvoetsluys,  which  was  in  the 
country  of  a  belligerent  ally ;  which  was  so  far  considered  as  different 
from  the  case  of  such  a  court  sitting  in  a  neutral  country,  that  the  Jieu- 
tral  claimant  was  directed  to  go  into  proof  of  the  merits  as  to  the  trans- 
fer, reserving  the  question  of  law.  And  in  the  last  mentioned  case 
of  the  Betsy  Kruger,  the  point  was  considered  to  be  so  settled,  that 
the  advocates  waived  the  discussion  of  it,  and  the  court  considered  the 
condemnation  as  legal.  That  I  consider  as  a  case  directly  in  point, 
to  support  the  legality  of  a  condemnation  in  the  country  of  a  bellig- 
erent ally.  This  court  therefore  must  decide  the  question  consistently 
with  the  opinion  of  a  court  of  peculiar  jurisdiction  on  the  same  point, 
until  we  are  told  by  a  superior  tribunal  that  that  determination  was 
improper.  Judgment  of  nonsuit.^ 

1  In  Dunnhlson  v.  Thompson,  1808,  1  Camp.  429,  431,  Lord  Elleiibornugli  said: 
"While  a  government  subsists  as  this  did  [Corfu  under  Russian  occupation],  \ve 
cannot  look  to  the  degree  in  whicli  it  might  be  overawed  by  a  foreign  force.  Tiie 
sentence  was  pronounced  by  a  belligerent  on  neutral  territory,  and  is  therefore  void." 
A  decision  of  a  prize  court  sitting  in  a  neutral  state  does  not  condemn  and  tiierefore 
passes  no  vaild  title.  Flad  O/jen,  1799,  supra.  Wliile  the  prize  should  be  brought 
into  captor's  port  and  there  passed  upon  by  a  prize  co  art,  the  physical  presence  of 
the  prize  is  not  necessary  :  it  may  be  in  the  port  of  a  neutral,  on  the  high  seas,  or  at 
the  bottom  of  the  seas,  Hudson  v.  Guestier,  1808,  4  Cr.  293;  especially  Tfin  Invin- 
cible, 1814,  2  Gall.  27,  39.     The  decision  of  a  prize  court  is  necessary  to  pass  title  to  the 


92G  BELLIGERENTS   AND   NEUTRALS.  [PART  H. 

DALGLEISH   v.    HODGSON. 
Common  Pleas,  1831. 

(5  Moore    <L-   Payne,   407.) 

Lord  Chief  Justice  Tixdal  now  delivered  the  judgment  of  the 
Court  as  follows  :  ^  — 

The  principal  question  in  this  case  is,  whether  the  sentence  of  con- 
demnation of  the  brig  George,  and  her  cargo,  in  the  Prize  Court  at 
]\Ionte  Video,  dated  the  13th  of  December,  1826,  is  to  be  received  in 
our  courts  as  conclusive  evidence  of  the  fact,  that  the  ship  was  cap- 
tured in  attempting  to  break  the  blockade  of  Buenos  Ay  res?  For,  if 
that  is  to  be  taken  as  a  fact  conclusively  proved,  then  the  plaintiffs  in 
this  action  are  in  no  condition  to  recover ;  not  upon  the  count  for  cap- 
ture and  detention,  because  such  capture  was  occasioned  by  the  volun- 
tary act  of  the  master,  in  violation  of  the  law  of  nations ;  nor  upon  the 
count  for  barratry,  because  it  appears  upon  the  whole  evidence,  that 
the  master,  supposing  him  to  have  broken  the  blockade,  acted  honestly 
and  bona  fide ;  his  conduct  being  attributable  rather  to  ignorance,  or 
want  of  caution,  than  to  such  fraudulent  design  as  is  necessary  to 
constitute  the  crime  of  barratr3\ 

The  general  law  upon  this  subject  is  well  known,  that  the  sentence 
of  a  foreign  Court  of  Admiralty,  of  competent  jurisdiction,  is  binding 
upon  all  parties,  and  in  all  countries,  as  to  the  fact  upon  which  the 
condemnation  proceeded,  where  such  fact  appears  on  the  face  of  the 
sentence,  free  from  doubt  and  ambiguity.  But  it  is,  at  the  same  time, 
as  well  established,  that,  in  order  to  conclude  the  parties  from  contest- 
ing the  ground  of  condemnation  in  an  English  Court  of  law,  such 
ground  must  appear  clearly  upon  the  face  of  the  sentence ;  it  must  not 
be  collected  by  inference  only,  or  left  in  uncertainty,  whether  the  ship 
■  was  condemned  upon  one  ground,  which  would  be  a  just  ground  of 

inflividnal  cnptor  ami  tlie  decision  of  a  competent  prize  court  liaving  jurisdiction  binds 
tlie  world.  For,  in  tlie  ianjjuage  of  Lord  Kenyon,  C.  J  :  ''In  general  there  is  no  doubt 
I  tliat  the  sentence  of  a  Court  of  Admiralty  is  conclusive,  as  to  the  points  which  it  pro- 
poses to  decide;  it  was  so  ruled  in  the  case  of  IliKjhes  v.  Cornelius  (32  Clias.  II.), 
2  Show.  232;  and  that  lias  been  acknowledged  to  be  law  ever  since."  Christie  v.  Secre- 
Uin,  17'j9,  8  Term  H.  192,  100. 

Other  cases  on  tliis  elementary  point  are:  Havelock  v.  Rorkwood,  1709,  8  Term  R. 
268;  Tf,e  Kif^U<j}tett,  18(K),  3  C.  Rob.  96;  The  Falcon,  1805,  6  C.  Rob.  194  ;  The  Invin- 
cible, 1816,  1  Wlieat.  2-38  ;  Wheelwright  v.  Depeyster,  1806, 1  Johns.  471  ;  Page  v.  Lennox, 
1818,  15. Johns.  172.  -  Kd. 

'  Siatement  of  the  case  omitted  as  the  judgment  sufficiently  states  the  facts.  —  Ed. 


CHAP.  III.]  DALGLEISH   V.   HODGSON.  927 

condemnation  by  the  law  of  nations,  or  on  another  ground,  whicli 
woukl  amount  only  to  a  breach  of  the  municipal  regulations  of  the 
condemning  country.  The  cases  of  Fisher  v.  0[/Ie,  1  Camp.  418,  and 
Calvert  v.  Bovill,  7  Term  Eep.  5'13,  are  express  authorities  to  this  point : 
and  the  sentence  of  condemnation  in  the  latter  case  bears  a  strong 
resemblance  to  that  in  the  present.  There,  Lord  Chief  Justice  Keuyon 
said :  "  If,  indeed,  that  court  had  stated  in  their  sentence,  that  they 
condemned  the  goods,  because  they  were  British  property,  I  should 
have  considered  myself  bound  by  their  sentence;  but  they  have 
assigned  other  reasons  for  their  adjudication.  The  express  grounds 
of  the  sentence  of  condemnation  are,  that  the  ship  was  destined  for 
one  of  the  West  India  Islands  ;  that  she  was  hired  and  loaded  at 
London,  and  had  a  certain  quantity  of  gunpowder  on  board :  therefore 
they  condemned  her  and  her  cargo  as  good  prize."  The  sentence  in 
that  case  was:  "Forasmuch  as  the  true  destination  of  the  said  vessel 
was  for  the  English  islands,  having  been  hired  and  loaded  at  London, 
and  that  there  has  been  found  on  board  her  eighty  barrels  of  gun- 
powder, the  court  declares  the  said  brig  to  be  a  good  prize  for  the 
benefit  of  the  captors," 

Now,  looking  at  the  adjudicatory  part  of  this  sentence,  which  is  the 
important  part  for  the  discovery  of  the  precise  ground  of  condemnation, 
it  is  in  these  terms,  viz. :  "  From  all  which,  and  from  what  the  docu- 
ments state,  I  judge  the  said  brig  George  and  her  cargo  to  be  good  and 
lawful  prize  to  the  capturers." 

The  words  "from  all  which"  refer  us  back  to  the  premises,  to  dis- 
cover the  grounds  of  the  sentence ;  and,  in  these  premises,  we  find 
enumerated  three  distinct  statements:  first,  "that  it  plainly  appears 
from  all  the  documents,  that  the  brig  sailed  from  Liverpool  knowing 
of  the  blockade,  and  which  the  captured  do  not  even  deny,  nor  that  her 
destination  was  Buenos  Ayres,  at  a  short  distance  from  which  she  was 
taken ;  secondl}^,  that,  for  the  reason  last  given,  she  ought  to  be  con- 
sidered as  violating  the  blockade  ;  thirdly,  that  the  ship  had  not  even 
the  plausible  excuse  of  coming  to  Monte  Video  first,  and  thereby  com- 
plying with  the  published  instructions."  Now,  upon  referring  to  these 
premises,  we  think  we  cannot  safely  infer  that  the  precise  ground  of 
condemnation  was  the  attempt  to  break  the  blockade.  The  first  state- 
ment refers  to  the  illegality  of  the  ship's  destination  from  Liverpool 
to  Buenos  Ayres,  then  being  under  blockade.  It  is  impossible  to  say 
with  certainty  that  the  sentence  may  not  have  proceeded  on  that 
ground,  in  part,  if  not  altogether.  It  is  more  than  probable  it  did  so  ; 
for,  in  another  part  of  the  premises,  the  Judge  reverts  to  this  state- 
ment in  these  terms:  ''Forasmuch  as  besides  not  doing  away  the 
proof  that  Buenos  Ayres  was  the  first  port  the  shipment  was  destined 


928  BELLTGEKENTS   AND   NEUTRALS.  [PART  n. 

for,  in  itself  crimiual.'"'  But,  if  this  was  the  ground  on  which  the 
sentence  proceeded  in  the  lirst  place,  it  is  no  ground  for  condemnation 
])y  the  law  of  nations,  unless  there  was  an  intention  to  violate  the 
blockade ;  and,  in  the  next  place,  the  sentence  leaves  untouched  the 
question  of  fact,  whether  the  blockade  was  broken,  or  attempted  to  be 
evaded.  If  it  formed  an  ingredient  in  the  judgment  of  the  Brazilian 
Court  of  Admiralty,  no  one  can  say  how  much  it  weighed  with  them, 
or  that,  if  this  ground  of  condemnation  had  been  out  of  the  case,  the 
court  intended  to  rely  on  the  fact  of  the  blockade  being  broken  as 
their  ground  of  adjudication.  Again,  in  the  latter  part  of  the  preamble 
to  the  sentence,  the  judge  refers  to  a  non-compliance  with  published 
instructions,  as  a  charge  against  the  master  of  the  ship.  "What  these 
instructions  are,  does  not  appear ;  whether  some  regulations  ordained 
by  their  own  authority  or  not,  is  uncertain.  But,  if  this,  which  is  no 
ground  of  condemnation  by  the  general  law  of  nations  (Mai/ne  v.  Walter, 
E.  T.  22  Geo.  3 ;  Park  on  Insur.  6th  ed.  474),  operated  on  the  mind  of 
the  foreign  judge  to  condemn  the  ship  and  cargo,  there  is  an  end  again 
to  the  conclusive  finding  of  the  fact,  that  the  ship  violated  the  blockade 
of  Buenos  Ayres. 

Still  further,  the  terms  in  which  the  fact  of  the  violation  of  the 
blockade  is  adverted  to  in  the  preamble  of  the  sentence,  are  far  from 
direct  and  declaratory,  but  afford,  at  most,  an  inference  that  the  judge 
felt  himself  warranted  in  drawing  such  a  conclusion.  "For  this 
reason,"  says  the  judge,  "she  ought  to  be  considered  as  violating  the 
blockade,  and  which  she  would  have  effected  but  for  the  diligence  of 
the  captors." 

Under  a  sentence,  therefore,  expressed  with  so  much  doubt  and 
ambiguity  as  to  the  real  ground  on  which  it  proceeded,  we  hold  our- 
selves at  liberty  to  determine,  whether,  upon  the  evidence  given  at  the 
trial,  such  violation  of  the  blockade  did  in  fact  take  place  or  not ;  and, 
upon  that  question,  we  are  satisfied  on  the  evidence,  that  the  captain  did 
not  break,  nor  did  he  intend  to  break  the  blockade,  but  that  he  honestly 
intended  to  obtain  instructions  from  the  blockading  squadron,  not 
having  been  before  warned  off  by  any  of  the  Brazilian  cruisers. 

The  only  remaining  objection  that  has  been  insisted  on  against  the 
plaintiffs'  right  to  recover  is,  that  the  vo^'age  in  question  was  an  illegal 
voyage  in  its  commencement,  because  the  ship  was  destined  to  a  port 
which  was  notified  to  be  under  blockade.  But  that  this  was  not  an 
illegal  voyage  was  determined  so  lately  by  the  Court  of  King's  Bench 
(Nofjlor  V.  Taijlor,  9  Barn.  &  Cress.  718  ;  s.  c.  4  Man.  &  Ry.  526),  upon 
a  voyage  described  in  the  policy  in  the  very  same  terms  as  the  present, 
and  under  circumstances  so  precisely  similar,  that  it  is  unnecessary 
for  us  to  say  more,  tlian  tliat  we  entirely  concur  witli  the  judgment 


CHAP.  ITT.]  GUSHING,    ADMINISTRATOR,    V.   UNITED   STATES.  929 

there  given,  founded,  as  it  is,  upon  the  authority  of  Lord  Stowell's 
judgment  in  the  case  of  The  Sheplcerdess,  5  Eob.  Adm.  Rep.  262. 

We  therefore  think  the  verdict  should  stand,  and  that  judgment 
should  be  entered  for  the  plaintiffs. 

Judgment  for  the  plaintiffs. 


cusHiXG,  admi:n^istratoe,  v.  the  united  states. 

UxiTED  States  Court  of  Claims,  1886. 

(22  Court  of  Claims,  1.) 

Davis,  J.,  delivered  the  opinion  of  the  court  :^  — 

The  jurisdictional  act  requires  us  to  inquire  into  legal  condemna- 
tions, and  it  is  urged  on  behalf  of  the  defendants  that  all  condemna- 
tions by  the  French  courts  are  final  and  conclusive  upon  this  court  if 
the  French  court  had  jurisdiction.  Many  citations  are  made  in  sup- 
port of  this  contention,  among  them  is  the  case  of  Baring  and  others 
V,  The  Royal  Exchange  Assurance  Company^  5  East.  99  et  scj.,  wliich 
may   be   taken  as  a  fair  illustration. 

The  American  ship  Rosanna,  insured  by  the  defendants,  was 
captured  and  condemned  by  the  French,  whereupon  the  plaintiffs  sued 
on  the  policy  and  recovered.  Lord  EUenborough,  Ch.  J.,  interrupting 
the  argument,  said  : 

"  Does  not  this  (French)  sentence  of  condemnation  proceed  suffi- 
ciently on  the  ground  of  infraction  of  treaty  between  America  and 
France  in  the  ship  not  having  those  documents  with  which  in  the 
judgment  of  the  French  court  the  American  was  bound  by  treat}'  to  be 
provided  ?  I  do  not  say  that  they  have  construed  the  treaty  righth' ; 
on  the  contrary,  suppose  them  to  have  construed  it  ever  so  iniqui- 
tously  ;  yet,  having  competent  jurisdiction  to  construe  the  treaty,  and 
having  professed  to  do  so,  we  (the  court)  are  bound  by  that  comity  of 
nations  which  has  always  prevailed  amongst  civilized  states  to  give 
credit  to  their  adjudication  when  the  same  question  arises  here  upon 
which   the  foreign  court  has  decided.     After  arguing  for   hours,   we 

1  The  facts  of  the  case  are  omitte'l,  and  onlj'  part  of  tlie  opinion  is  given  relating 
to  decisions  of  prize  courts.  In  tliis  connection  reference  should  be  made  to  the 
elaborate  and  closely  reasoned  opinion  on  the  finality  of  judgments  of  prize  courts, 
delivered  by  the  celebrated  William  Pinkney,  Commissioner,  in  The  Betsei/,  1797, 
3  Moore,  Int.  Arb.  3180-.j206.  Mr.  Wheaton  pronounced  Pinkney 's  opinions  (delivered 
while  a  member  of  the  Board  of  Commissioners  under  Art.  VII.  of  Jay's  Treaty, 
Nov.  19,  1794)  "  finished  models  of  judicial  eloquence,  uniting  powerful  and  compre- 
hensive argument  with  a  copious,  pure,  and  energetic  diction."  —  Ed. 

59 


930  BELLIGERENTS    AND   NEUTEALS.  [PAET  11." 

must  come  to  the  same  conclusion  at  last,  that  the  French  court  has 
specifically  condemned,  the  vessel  for  an  infraction  of  treaty  which 
negatives  the  warranty  of  neutrality.  Then,  having  distinctly  adjudged 
the  vessel  to  be  good  prize  upon  a  ground  within  their  jurisdiction, 
unless  we  deny  their  jurisdiction,  we  are  bound  to  abide  by  that 
judgment.  Whenever  a  case  occurs  of  a  condemnation  by  a  foreign 
court  on  the  ground  of  ex  parte  ordinances  only,  without  drawing 
inferences  from  them  to  show  an  infraction  of  treaty  between  the 
nation  of  the  captors  and  captured,  and  referring  the  judgment  of  the 
court  to  the  breach  of  treaty,  I  shall  be  glad  to  hear  the  case  argued, 
whether  such  ordinances  are  to  be  considered  as  furnishing  rules 
of  presumption  only  against  the  neutrality,  or  as  positive  laws  in 
themselves,  binding  other  nations  lyroprlo  v'tgor^e." 

The  decision  of  the  English  court,  tlien,  goes  to  this  extent,  that  in 
an  action  between  individuals  the  decree  of  the  French  court  which 
had  jurisdiction  is  final ;  so  would  it  also  be  final  as  to  the  vessel,  and 
the  purchaser  at  the  confiscation  sale  could  rest  upon  the  decree  as 
good  title  against  all  the  world. 

But  all  this  does  not  affect  the  position  of  the  United  States 
Government  against  the  government  of  France. 

Lord  Ellenborough  says  that  no  matter  how  iniquitous  the  con- 
struction given  the  treaty  by  the  French  court,  he,  as  a  judge,  is 
bound  to  follow  it.  But  so  is  not  the  government  of  the  United 
States.  That  government  could  have  objected  that  either  the  court 
was  corrupt,  or  that  there  existed  no  treaty,  or  that  there  had  been 
manifest  error  in  construing  it.  All  such  questions  may  be  outside 
the  right  of  a  court  to  consider,  but  they  are  within  the  right  and  form 
part  of  the  dut\'  of  the  political  branch  of  the  government.  If  the 
French  court,  acting  within  its  jurisdiction,  construed  the  treaty 
iniquituusly,  the  courts  might  not  have  power  to  remedy  the  wrong, 
but  the  owner  had  a  right  to  appeal  to  his  government  for  redress,  and 
that  government,  when  convinced  of  the  justice  of  his  com[)laiut,  was 
bound  to  endeavor  to  redress  it. 

The  decree  is  an  estoppel  on  the  courts,  but  it  is  no  estoppel  on  tho 
government;  in  fact,  the  right  to  diplomatic  interference  arises  only 
after  the  decree  is  rendered.  Of  course,  precedents  for  cases  of  this 
kind  are  not  to  be  found  in  the  reports  of  courts,  for  no  such  case  can, 
in  the  nature  of  things,  come  before  a  court  unless  by  virtue  of  a 
special  and  peculiar  statute,  such  as  that  under  which  we  now  act; 
but  diplomatic  history  is  full  of  tliem. 

Kutlierl'orth  (Institutes,  Vol.  If.  ch.  9,  p.  19),  speaking  of  the  right 
of  a  state  to  proceed  in  prize,  says : 

''This    right   of   the   state    to   which    the   captors  belong  to  judge 


CHAP.  III.]   GUSHING,   ADMINISTRATOR,   V.   UNITED   STATES.        931 

exclusively  is  not  a  complete  jurisdiction.  The  captors  who  are  its 
own  members,  are  bound  to  submit  to  its  sentence,  though  this 
sentence  should  happen  to  be  erroneous,  because  it  has  a  complete 
jurisdiction  over  their  persons.  But  the  other  parties  in  the  con- 
troversy, as  they  are  members  of  another  state,  are  only  bound  to  sub- 
mit to  its  sentence  as  far  as  this  sentence  is  agreeable  to  the  law  of 
nations,  or  to  particular  treaties,  because  it  has  no  jurisdiction  over 
them  in  respect  either  to  their  persons  or  of  the  things  that  are  the 
subject  of  the  controversy.  If  justice,  therefore,  is  not  done  them, 
they  may  apply  to  their  own  state  for  a  remedy ;  which  may,  con- 
sistently with  the  law  of  nations,  give  them  a  remedy  either  by  solemn 
war  or  by  reprisals."     See  Dana's  Wheaton,  391. 

This  brings  us  naturally  to  another  point,  admitted  as  a  general 
principle,  that  appeal  should  not  be  prosecuted  to  the  court  of  last 
resort  before  there  can  be  diplomatic  intervention. 

The  exceedingly  able  British-American  commission  which  sat  in 
Washington  in  1872  not  only  unanimously  decided  that  they  had 
jurisdiction  in  prize  cases  in  which  the  decision  of  the  ultimate 
appellate  tribunal  of  the  United  States  had  been  had,  a  conclusion  in 
which  even  the  agent  of  the  United  States  concurred,  but  also  that 
they  had  jurisdiction  when  the  claimant  had  not  pursued  his  remedy 
to  the  court  of  last  resort,  provided  satisfactory  reasons  were  given  for 
the  failure  to  appeal.  Papers  relating  to  the  Treaty  of  Washington, 
Vol.  VI.  pp.  88-90.  To  this  last  conclusion  the  American  commissioner 
dissented ;  but  even  he  held  that  a  misfeasance  or  default  of  the 
capturing  government,  by  which  means  an  appeal  was  prevented, 
was  sufficient  to  excuse  the  failure  to  appeal.     Id.  92. 

The  rights  of  the  prize  courts  are  the  rights  of  the  capturing  state. 
These  courts  are  its  agents,  deputed  by  it  to  examine  into  the  conduct 
of  its  own  subjects  before  becoming  answerable  for  what  they  have 
done,  and  the  right  ends  when  their  conduct  has  been  thoroughly 
examined.  Therefore  the  state  has  a  right  to  require  that  the  captor's 
acts  be  examined  in  all  the  ways  which  it  has  appointed  for  this 
purpose,  and  on  this  principle  is  founded  the  doctrine  that  the  com- 
plainant, unless  he  exhaust  his  appeal,  shall  be  held  to  confess  the 
justice  of  the  decision.  This  pre-supposes,  first,  that  there  are  ap- 
pellate courts  ;  second,  that  they  are  open  to  the  complainant  freely  and 
honestly.  The  captor  has  no  right  to  insist  for  his  own  protection 
upon  the  fulfilment  of  a  form  which  he  by  his  own  acts  prevents. 

There  is  also  a  distinction,  not  often  clearly  drawn,  between  the 
validity  of  a  claim  per  se  and  the  right  to  enforcement.  The  justice  of 
the  claim  is  founded  upon  the  injustice  of  the  sentence.  The  appeal 
does  not  affect  the  merits  of  the  claim ;  it  does  not  palliate  or  destroy 


932  BELLIGERENTS   AND   NEUTRALS.  [PART  11. 

any  wrong  done;  but  it  is  simply  a  course  provided  for  the  captor's 
protection,  that  he  may  fully  examine  into  the  acts  of  his  own  agents, 
through  his  other  agents,  the  courts. 

"The  whole  proceeding,  from  the  capture  to  the  condemnation,  is  a 
compulsory  proceeding  in  invitum  by  the  state  in  its  political  capacity, 
in  the  exercise  of  war  powers,  for  which  it  is  responsible,  as  a  body 
politic,  to  the  state  of  which  the  owner  of  the  property  is  a  citizen.'' 
Dana's  Wheaton,  note  186. 

Therefore  the  capturing  state  may  waive  such  demand,  and  not 
insist  upon  exhausting  its  right  to  further  investigation,  and  may 
waive  it  by  failing  to  provide  an  appellate  tribunal,  or  by  preventing 
recourse  to  it,  or  in  any  other  way  which  shows  an  intention  not  to  in- 
sist upon  this  right  of  examination-,  but  appeal  or  no  appeal,  the 
validity  of  the  claim  is  founded  upon  the  injustice  to  the  claimants. 

All  writers  lay  down  the  principle  that  appeal  should  be  taken  from 
the  inferior  to  the  superior  tribunal  before  resort  by  the  injured 
government  to  measures  of  redress ;  but  this  principle  is  always 
coupled  with  the  extreme  measures  of  war  and  reprisals  (see  Euther- 
forth,  sjipra  ;  Grotius,  bk.  III.  ch.  2,  4,  5),  and  there  is  no  assertion  in 
the  writers  that  illegal  capture  necessarily  does  not  found  an  inter- 
national claim,  even  when  appeal  has  not  been  taken. ^ 

1  It  haa  generally  been  held  tliat  the  commander  of  a  belligerent  cruiser  has  no  right 
to  decide  controverted  questions  arising  in  cases  of  prize.  He  seizes  a  vessel  on  the 
belief  or  suspicion  that  she  is  enemy's  property,  or  that  she  is  engaged  in  a  forbidden 
commerce,  it  is  left  to  the  prize  court  of  the  captor's  country  to  determine  wliether  tiicse 
suspicions  are  warranted  or  not. 

Captain  Semmes,  of  the  Confederate  steamer  Sumpler,  and  later  commander  of 
the  Alabama,  seeirts  to  have  turned  liis  cabin  into  a  prize  court  on  the  occasion  of  every 
capture  made  by  him. 

During  his  cruises  in  the  Siimpter  and  the  Alabama,  Captain  Semmes  had  occasion 
to  adjudicate  in  more  than  seventy  cases  of  prize;  in  fifty-nine  of  these  cases,  sliip 
and  cargo  were  condemned  as  enemy's  property,  and  burned  ;  in  nine  cases  the  ships 
were  released  on  ransom  bonds,  the  cargoes  being  plainly  neutral.  But  in  a  large 
number  of  the  cases  of  those  condemned  and  burned,  there  were  claims  for  the  cargoes 
as  neutral  property.  Captain  Semmes  seems  to  have  condemned  the  cargo,  unless 
there  was  positive  proof  of  its  neutrality.  This  practice  was  carried  on  by  him  and 
others  for  four  years,  and  was  acquiesced  in  by  neutral  nations,  who  permitted  their 
ships  to  be  searched  and  tlieir  property  adjudicated  upon  by  these  commanders.  Tliey 
received  tliem  into  their  ports,  and  supplied  them  with  provisions  and  coal.  Wlio 
Bhall  say,  herefore,  that  hereafter  a  prize  court  may  not  be  established  on  the  deck 
of  every  belligerent  man-of-war,  the  commander  constituting  such  court? 

Tlie  following  is  a  specimen  of  Captain  Semmes'  procedure,  taken  from  his  own 
memorandum. 

Case  of  the  Lnfayetlc  ("  Cruise  of  the  Alabama,"  I.  346) :  — 

"  Ship  and  cargo  condemned.  The  cargo  of  tiiis  ship  was  condemned  by  me  as 
enemy's  property,  notwillistanding  there  were  depositions  of  the  siiippers  tiiat  it  had 
been  purchased  by  them  on  neutral  account.     These  ex  parte  statements  are  precisely 


CHAP.  III.]     GUSHING,   ADMINISTRATOR,  V.   UNITED   STATES.         933 

such  as  every  unscrupulous  merchant  would  prepare,  to  deceive  his  enemy  and  save 
his  property  from  capture." 

After  an  extended  discussion  of  the  case,  sliowing  that  there  was  fraud,  and  that 
the  neutrality  of  the  cargo  was  not  establislied.  Captain  Semmes  continues :  — 

"3J  Phillimore,  599,  to  the  effect,  that  'furtlier  proof  is  always  necessary  wliere 
the  master  cannot  swear  to  the  ownership  of  the  property  (as  in  this  case).  And  as  I 
cannot  send  my  prizes  in  for  adjudication,  I  must  of  necessity  condemn  in  all  cases 
where  'further  proof '  is  necessary,  since  the  granting  of  'further  proof '  proceeds  on 
tlie  presumption  tliat  the  neutrality  of  the  carijo  is  not  sufficiently  establislied ;  and 
where  tlie  neutrality  of  the  propert}'  does  not  full}'  appear  from  the  ship's  papers  and 
the  master's  deposition,  I  had  tlie  right  to  act  upon  the  presumption  of  enemy's 
property." 

Again,  in  the  case  of  the  Express   (Id.  1G7),  in  which  ship  and   cargo  were  con- 
demned.    "It  must  be  admitted  that  this  is  a  case  in  which,  perhaps,  a  prize  court 
would  grant  'further  proof;'  but  as  I  cannot  do  this,  and  as  a  distinct  neutral  charac- ' 
ter  is  not  impressed  upon  the  property  by  former  evidence,  I  must  act  under  the  pre- 
sumption of  law.     See  3d  Phill.  589." 

The  following  is  an  extract  from  the  "Cape  Argus,"  giving  an  interview  with 
Captain  Semmes :  — 

"You  English  people  won't  be  neighborly  enough  to  let  me  bring  my  prizes  into 
your  ports  and  get  tliem  condemned,  so  that  I  am  obliged  to  sit  here  a  court  of  myself, 
try  every  case,  and  condemn  the  sh.ips  I  take." 

For  tiie  constitution,  functions,  and  procedure  of  prize  courts,  see  :  1  Dana's  Wheaton, 
note  186,  pp.  480-487 ;  Lawrence's  AVheaton,  960-976;  2  Halleck,  392-431;  3  PhillL- 
more's  Int.  Law,  648-769;  Benedict's  Admiralty  Practice,  3d  ed.  §§  509-512.  —  Ed. 


INDEX-DIGEST. 


The  Syllabus  is  referred  to  by  sections;  the  text  by  pages. 

Abandon'mext  of  territory  once  occupied,  §  36. 

Acquisition  of  territory  by  accretion,  §  39. 

Acquisition  of  territory  by  conquest  or  cession  ;  the  loss  of  territory,  §  40. 

Adams,  J.  Q.,  on  recognition  of  independence,  44-45  n. 

Adula,  The,  — dc  facto  and  de  jure  blockade  considered  and  held  inter  alia  that 

occupation  of  blockaded  port  does  not  raise  blockade,  826. 
Agent  —  in  enemy's  country,  if  appointed  before  war,  may  transact  business  for 

principal.  —  Small's  Adm'r  v.  Lumpkin's  Ex'x,  538  ;  §  143. 
Alabama  claims  —  neutral  port  may  not  be  used  for  building,  equipping,   or 

basis  of  supplies  for  either  belligerent,  713. 
Aliens  —  residing  within  United  States  may  by  the  law  of  nations  be  expelled 

therefrom—  Fong  Yue  Ting,  382;  are  aliens  exempt  from  military  duty? 

§64. 
AUeganean,  The, — enclosed  bays,  such  as  the  Chesapeake  and  Delaware,  not 

high  seas,  143. 
Allegiance —  expatriation,  370-375. 
Allegiance  —  at  common  law  subject  may  not  change  without  permission  of 

State  —  ^Eneas  INIacdonald,  370;  Williams'  case,  372. 
Ally  —  recapture  of  property  of,  see  Recapture. 

Ambassadors  — act  for  preserving  privileges  of,  4  ;  see  also  Diplomatic  agents. 
American  Insurance  Co.  v.  Canter  —  cession  of  territory  changes  public  not 

private  rights,  657. 
Amicable  settlement  of  disputes  and  attempts  to  mitigate  the  harshness  and 

hardships  of  war,  §§  112,  113,  114. 
Amorj'  I".  McGregor  —  American  citizen  allowed  to  withdraw  his  goods  from  Eng- 
land after  outbreak  of  war  between  United  States  and  Great  Britain,  561. 
Ann  Green,  The  ship  —  property  may  not  change  character  in  transit,  nor  does 

neutrality  of  shipper  protect  property  consigned  for  delivery  to  enemy's 

port,  620. 
Anna,  The  —  capture  within  territorial  waters  of  neutral  is  illegal  and  vessel 

should  be  restored  by  prize  court  of  captor,  684. 
Anna  Catharina,  The  —  goods  shipped  to  become  property  of  enemy  on  arrival, 

condemned,  612. 
Anne,  The — capture  in  neutral  waters  is  good  as  between  enemies,  rights  of 

neutral  nation  are,  however,  violated.     If  captured  vessel  begins  hostilities 

in  neutral  waters,  claim  to  protection  lost,  688. 


936  INDEX. 

Antoine  v.  Morshead  —  bills  of  exchange  drawn  by  prisoner  of  war  in  enemy 

country  on  subject  of  home  country  held  valid,  573. 
Antonia  Johanna,  The  —  freight  properly  charged  upon  whole  cargo,  i.  e.  upon 

that  restored  as  well  as  upon  that  condemned,  632. 
Arbitration,  §  112. 
Arbitration   award  —  award  under  arbitration  treaty  has  force  of  law,  —  La 

Xinfa,  443. 
Arbitration,  Permanent  Court  of, —  first  decision  of  —  The  Pious  Fund  Case, 

449  n. 

Archives  —  works  of  art,  etc.,  not  subject  to  capture  in  war,  §  159. 

Armed  forces  and  ships  of  war  in  foreign  territory  are  exempt  from  local  juris- 
diction, §  56. 

Arming  and  equipping  vessels  of  war  in  neutral  territory,  §  174. 

Armistices,  §  146. 

Arms,  ammunitions  —  delivered  to  insurgent  vessel  in  United  States  ports,  held 
not  violation  of  United  States  neutrality  laws,  United  States  v.  Trumbull, 
731 ;  sale  of,  by  United  States  to  belligerent,  held  legal,  747  n. ;  sale  of  nmni- 
tions  of  war  by  a  neutral  State,  §  176. 

Art,  works,  of  —  not  subject  to  capture  in  war,  §  159. 

Articles  of  Confederation,  1777,  10. 

Asylum,  right  of,  §§  60-62  ;  256-273;  does  not  exist  ordinarily  in  legations 
except  in  Central  and  South  American  Republics,  United  States  r.  Jetfers, 
256;  and  257-258  n.  ;  on  men-of-war,  §01;  on  merchant  ships,  not  per- 
mitted, §  62. 

Atlas,  The  — goods  placed  on  neutral  vessels  consigned  to  enemy  port,  or  some 
other  market,  are  enemy  property  and  may  be  captured.  In  this  case 
neutral  vessels  in  voyage  from  Vigo  to  Seville  held  engaged  in  coasting 
trade  of  enemy,  895. 

Atalanta,  The  —  carriage  of  despatches  to  enemy  port  subjects  ship  to  con- 
fiscation, 780. 

Augmentation  of  force  or  equipment  of  belligerent  cruiser  is  illegal ;  if  prize 
captured  after  such  augmentation,  will  be  restored  if  brought  within  neu- 
tral waters,  the  Santissima  Trinidad,  701,  see  also  Equipment. 


Bain  i'.  Speedwell —  capture  made  after  treaty  of  peace  invalid,  075. 

Baiz,  fn  re  — diplomatic  agents  of  all  grades  are  exempt  from  suit,  but  consuls, 

altliough  temporarily  exercising  diplomatic  functions,  are  not,  or  need  not 

be,  so  privileged,  197. 
Balloons  used  in  war,  §  129. 

Barbary  States  —  how  far  subject  to  international  law,  The  Helena,  45. 
Bays — Bay  of   Fundy,  open   arm  of  sea,  153  n.  ;  Chesapeake  Bay,  Delaware 

Bay,  closed  seas,  The  Alleganean,  143  ;  if  entrance  to  bay  not  more  than 

six  miles  across,  considered  closed  sea,  The  Alleganean,  143;   bays  and 

gulf.s.  §  49  [>. 
Beaver,  The  —  master  of  vessel  and  boy  allowed  salvage  on  rescue  of  vessel 

from  enemy,  053. 
Beers  v.   Arkansas — sovereign  may  not  be  sued   in  iiis  own  courts    witliout 


INDEX.  937 

his  consent,  and  he  may  prescribe  the  terms  on  which  suit  may  be  brought; 
this  applies  equally  to  the  United  States  and  State  of  the  union,  186. 

Behring  Sea  Arbitration,  see  Ninfa,  443. 

Belgenland,  The  —  action  arising  from  collision  of  two  foreign  vessels  on  the 
high  seas  may  be  maintained  in  United  States  (Admiralty)  Court,  338. 

Belligerency,  rights  flowing  from,  758  n.;  recognition  of,  §24;  views  of  Presi- 
dents (Jrant  and  McKinley  on  recognition  of,  758  n. 

Belligerent  communities,  §  23 ;  succession  to  the  rights  erf,  §  27 ;  relations  of, 
after  acquiring  independence,  to  the  contract  rights  and  duties  of  the 
parent  state,  §  28 ;  legal  right  to  recognition  by  sovereign  states,  §  25. 

Belligerents  —  pacific  intercourse  of,  §  146  ;  relations  between,  and  neutrals, 
historical  sketch  of,  §  172  ;  right  of,  to  interfere  with  neutral  commerce, 
see  A'isit  and  Search,  §§  187-189  ;  858-899. 

Benito  Estenger,  The  —  colorable  transfer  of  enemy's  property  does  not  affect 
liability  thereof  to  capture,  621. 

Bentzen  v.  Boyle  —  unsold  produce  of  enemy's  soil  is  hostile,  irrespective  of 
domicile  of  owner  of  soil,  598. 

Betsey,  The  —  mere  declaration  by  commander  without  actual  investment  will 
not  constitute  blockade,  798. 

Bills  of  exchange  —  drawn  by  prisoner  of  war  in  enemy  country  on  subject 
of  home  country  held  valid,  Antoine  v.  Morshead,  573 ;  not  regarded  as 
trading  with  the  enemy,  §  142. 

Blackstone's  Commentaries  —  law  of  nations  is  part  of  common  law,  8. 

Blair  v.  Silver  Peak  Mines  —  definition  of  citizenship  and  rights  thereto  apper- 
taining, 376. 

Blockade,  796-845  ;  purpose  of,  §  182 ;  absence  of  blockading  fleet  excuses 
entry  and  departure  during  sucli  absence.  The  Nancy,  817  ;  attempt  to  leave 
blockaded  port  subjects  vessel  and  cargo  to  condemnation.  The  Johanna 
Maria,  803  ;  de  facto  blockade,  §  182 ;  de  facto  and  de  jure  blockade  con- 
sidered, and  held  inter  alia  that  occupation  of  blockaded  port  does  not  raise 
blockade.  The  Adula,  826;  notification,  §  182  ;  by  notice,  ^nd  blockade  de 
facto  when  notice  is  required.  The  Neptunus,  796  ;  in  case  of  de  facto 
blockade,  runner  must  be  taxed  directly  or  indirectly  with  knowledge  of 
its  existence.  The  Franciska,  804  ;  mere  declaration  by  commander  with- 
out actual  investment  will  not  constitute  blockade.  The  Betsey,  798  ;  mas- 
ter is  agent  for  cargo  as  well  as  ship,  therefore  attempt  of  master  to  enter 
blockaded  port  affects  cargo,  The  Panaghia  Rhomba,  800  ;  merchandise 
shipped  by  land  or  inland  navigation  from  blockaded  port,  thence  from 
port  not  blockaded,  not  liable  to  confiscation  for  breach  of  blockade.  The 
Ocean,  819 ;  neutral  not  forbidden  to  trade  with  blockaded  port,  but  sub- 
jects property  to  capture  and  confiscation  by  so  doing.  The  Helen,  821 ; 
effective  blockade,  §  182;  blockade  to  be  binding  must  be  effective,  pres- 
ence of  a  single  cruiser  held  sufficient.  The  Olinde  Rodrigues,  835;  vessel 
leaving  blockaded  port  temporarily  occupied  by  enemy  not  liable  to  capture  ; 
prohibition  to  import  does  not  necessarily  extend  to  export.  The  Gerasimo, 
811  ;  pacific  blockade,  §  115 ;  penalty  for  breach  of  blockade  —  French  rule, 
§183. 

Boedes  Lust,  The  —  definition  and  nature  of  hostile  embargo,  460. 


938  INDEX. 

Bombardment  of  towns,  §  162  ;  fortified,  open,  §  128. 

Booty,  right  to,  §  160. 

Bosphorus  and  Dardanelles,  §  49  a. 

Bouadaries  —  between  independent  nations  determined  by  political  department, 
Poster  V.  Neilson,  75  ;  between  States  of  the  American  Union  determined 
by  judiciary,  United  States  v.  Texas,  76 ;  political  department  of  the  gov- 
ernment determines  what  are  boundaries  under  treaties,  §  44  ;  determina- 
tion of  river-boundaries,  §  45  ;  determination  in  the  cases  of  lakes  and 
mountains,  §  46. 

Boussmaker,  Ex  parte  —  property  in  form  of  dividend  arising  from  contract 
made  before  war  held  not  liable  to  confiscation,  494. 

Breach  of  blockade,  American  courts,  §  186. 

Brig  Joseph,  The  —  Citizen  of  United  States  residing  in  enemy  country  at  out- 
break of  war  may  not  bring  back  his  property  if  it  involves  trade  with 
enemy,  5.56. 

Brig  Sea  Nymph,  The  —  vessel  sailing  under  convoy  is  presumed  to  remain 
under  convoy  and  therefore  liable  to  capture ;  right  of  search  implies  right 
to  use  force  if  necessary  in  its  execution,  869. 

British  Foreign  Enlistment  Acts,  §  174  ;  693. 

Brown  v.  United  States  —  debts  due  the  enemy  and  private  property  in  country 
at  outbreak  of  war  confiscable  by  law  of  nations.  In  the  United  States, 
act  of  Congress  necessary  to  confiscate  them,  486,  and  493  n. 

Brussels  Conference,  §  114. 

Buron  v.  Denman  —  exterritorial  acts  by  order  of  the  State,  bind  State,  but  not 
agent,  305. 

Buttenuth  v.  St.  Louis  Bridge  Co.  —  middle  or  main  channel  of  river  is  divid- 
ing line  or  boundary,  121. 


Canals,  interoceanic :  Suez,  Corinth,  Kiel,  Panama,  §  50. 

Capitulations,  §  146. 

Capture  —  passes  title  to  captor's  country,  but  title  only  passes  to  individual 

captor  by  condemnation  in  prize  court  of  captor's  country,  Commodore 

Stewart's  case,  910. 
Capture  of  property  on  land  and  sea  —  difference  between,  899  n. 
Carlos   F.    Roses,  The  —  previous  or  subsisting  liens  ou   |;aptured   ship   not 

respected  in  prize  court,  637. 
Carlotta,  The  —  salvage  on  neutral  property  recaptured  or  rescued  from  emeny 

not  given  unless  such  property  really  exposed  to  condemnation,  650. 
Caroline,  The  —  State  may  abate  a  nuisance  in  foreign  country,  67,  and  319  n. 
Carrington  v.  Merchant's  Insurance  Co.  —  contraband  and  penalty  for  carriage 

thereof,  769.  \     

Cartels,  §  146.  \ 

Castioni,  In  re  —  political  offenders  not  extraditable,  285,  and  293  n.,  294  n. 

Cession  —  of  territory  changes  public  not  private  rights,  American  Ins.  Co.  v. 

Canter,  6.57 ;  territory  definitely  ceded  to  United  States  ceases  to  be  foreign 

territory  from  ratification  of  treaty  of  cession,  Fourteen  Diamond  Rings  v. 

United  States,  667  ;  see  Conquest. 


INDEX.  939 

Change  of  sovereignty,  nee  Sovereignty,  change  of. 

Charge  d' Affaires,  see  Diplomatic  agents. 

Charkieh,  The  —  definition  and  nature  of  sovereign  and  semi-sovereign  States 
(Egypt),  48. 

Charming  Nancy,  The  —  who  may  sue  on  ransom  bill,  568. 

Chesapeake  Bay  —  not  a  part  of  the  high  seas.  The  Alleganean,  143. 

Chinese  —  status  of,  in  United  States,  §  93  ;  born  in  United  States  are  citizens 
thereof,  379. 

Chin  King,  Ex  parte —  Chinese  born  in  United  States  are  citizens  thereof,  379. 

Church  V.  Hubbard  —  municipal  seizures  may  not  be  made  beyond  the  three- 
mile  limit,  343  ;    The  Itata,  344  n. 

Citizen  —  duty  of,  to  return  home  on  outbreak  of  war,  The  William  Bagalay, 
565  ;  American  citizen  may  not  bring  back  property  from  enemy's  country 
eleven  months  after  outbreak  of  war.  The  St.  Lawrence,  559 ;  American 
citizen  may  not  send  vessel  to  enemy's  country  after  outbreak  of  war  to 
bring  away  property.  The  Rapid,  557  ;  American  citizen  on  British  vessel 
on  high  seas  subject  to  jurisdiction  of  Great  Britain,  Regina  v.  Anderson, 
331 ;  American  citizen  permitted  to  withdraw  goods  from  England  after  out- 
break of  war  between  United  States  and  Great  Britain,  Amory  v.  McGregor, 
561 ;  citizen  of  United  States'  residing  in  enemy's  country  at  outbreak  of 
war  may  not  bring  back  his  property  if  it  involves  trade  with  enemy,  The 
Brig  Joseph,  556;  after  outbreak  of  war,  citizen  may  neither  go  in  person 
nor  send  agent  to  enemy  country  to  bring  away  his  property,  §  139;  citi- 
zens residing  in  the  enemy's  country  should  return  home  on  the  outbreak 
of  war,  and  should  be  granted  reasonable  time  to  withdraw  their  property 
and  return,  §  140. 

Citizens  —  protection  of,  in  foreign  parts,  Koszta's  case,  400  n.;  Tousig's  case, 
401  n. ;  a  Prussian  subject's  case,  399  n.;  slaughter  house  cases,  400  n. ;  De 
Bode  V.  Regina,  400  n.  ;  Wagner's  case,  400  n. ;  Hausding's  case,  399  n.  ; 
Embden's  case,  399  n. 

Citizenship  —  Naturalization,  376-397,  §  88 ;  definition  of  citizenship  and 
rights  appertaining  thereto,  Blair  v.  Silver  Peak  Mines,  376  ;  Littell  v. 
Erie  R.  R.  Co.,  378;  Chinese  born  in  United  States  are  citizens  thereof, 
Ex  parte  Chin  King,  379 ;  citizenship  does  not  attach  upon  declaration  of 
intention  by  alien,  Minneapolis  v.  Reum,  390 ;  In  re  Moses,  396. 

Civil  War  —  definition  of,  §  118  ;  Prize  cases,  475. 

Clayton-Bulwer  Treaty,  1850,  §  104. 

Collision  on  high  seas  —  action  for  may  be  maintained  in  United  States  (Ad- 
miralty) Court,  The  Belgenland,  338. 

Colonial  trade  —  coasting  trade  —  extension  in  1793,  §  185. 

Combatants,  —  who  are  lawful  —  conditions  —  authority  —  organization  — 
dress,  §  122. 

Commercen.  The  —  effect  of  carrying  contraband  on  provisions,  freight,  and 
ship,  765. 

Commercia  belli,  §  146. 

Commercial  domicile,  585-607 ;  see  also  Domicile. 

Commonwealth  r.  Blodgett  —  exterritorial  acts  by  a  state  in  self-defence,  bar 
to  action  against  agent,  308. 


940  INDEX. 

Commonwealth  r.  Blanding — crime  committed  in  one  state  to  take  effect  in 
another,  punishable  in  latter,  300  n. 

Confederate  States,  recognition  of,  1861,  §  26;  legislative  and  judicial  acts  of, 
61-63  n. ;  how  considered  by  United  States  government,  Home  Insurance 
Co.  case,  59. 

Confederation,  §  14  ;  see  also  States, 

Congo  State  —  recognition  of,  §  19. 

Conquest  —  Cession,  §171;  works  no  change  in  privata  title  to  land,  United 
States  V.  Moreno,  666. 

Constitution  of  the  United  States,  1789,  11. 

Constitution,  The  —  ships  of  war  exempt  from  civil  and  criminal  jurisdiction 
of  foreign  port,  218. 

Consuls  —  origin  of  office,  function,  appointment,  dismissal,  privileges,  diplo- 
matically accredited,  "  Lettres  de  Provision,"  exequatur,  §99;  judicial 
functions  in  semi-civilized  lands,  §  100;  not  diplomatic  agents.  In  re  Baiz, 
197;  may  not  exercise  jurisdiction  in  foreign  port  over  crew  of  home  ship 
unless  authorized  so  to  do  by  treaty,  Ellis  v.  Mitchell,  234. 

Consular  courts  —  in  foreign  countries  exercise  jurisdiction  by  virtue  of  express 
treaty,  in  re  Ross,  238. 

Continuous  Voyages,  Colonial  trade,  and  Coasting  trade  —  extension  in  1793, 
§  185;  as  applied  in  American  civil  war.  The  Stephen  Hart,  852,  and  857  n. ; 
applied  to  carriage  of  contraband,  §  186. 

Contraband  of  war,  760-779;  definition  and  kinds  thereof.  The  Peterhoff, 
760  ;  carriage  of,  §  186  ;  carriage  of,  does  not,  as  a  rule,  involve  confiscation 
of  ship,  The  Neutralitet,  767;  carriage  of  despatches  to  enemy  port  sub- 
jects ship  to  confiscation.  The  Atalanta,  780  ;  carriage  of  enemy  despatches  to 
neutral  port  not  contraband.  The  Madison,  785;  carriage  of  despatches  gen- 
erally subjects  vessel  to  capture,  but  loss  of  time  and  expenses  only  penalty 
if  master  not  taxed  with  knowledge,  The  Rapid,  782  ;  carriage  of  military 
persons  in  neutral  vessel  subjects  vessel  to  confiscation,  The  Orozembo,  786  ; 
despatches  and  persons,  as,  §  181  ;  779-796;  classification  of,  res  ancipitis 
usus,  occasional,  §  179;  provisions  going  to  enemy's  port  of  naval  equip- 
ment may  be  treated  as.  The  Jonge  Margaretha,  762  ;  The  Commercen, 
765;  trade  in,  not  illegal,  Seton  v.  Low,  778;  The  Helen,  821 ;  penalty  for 
carrying,  as  to  provisions,  freight,  and  ship,  The  Commercen,  765;  penalty 
for  carrying,  time  when  penalty  attaches,  rule  of  English  and  American 
courts,  French  rule,  §  180;  general  law  of  contraband,  §  178;  and  lists  of 
contraband  articles,  766-767  n. 

Contracts  —  effect  of  war  upon,  between  enemies  made  before  the  war,  executed 
contracts,  executory  contracts,  statutes  of  limitation,  interest  on  debts, 
§  135;  entered  into  with  enemies  during  war  by  citizens  residing  in 
enemy's  country,  §  141  ;  made  during  civil  war  for  sale  of  property,  real 
or  personal,  to  aid  Confederate  States  held  void.  Ware  v.  Jones,  517;  and 
520  n.;  executory,  if  time  is  inat:!rial  and  of  the  essence,  are  annulled  by 
war.  Life  insurance  policies  are  of  this  character,  but  assured  is  entitled 
to  equitable  value  of  policy  at  time  of  outbreak  of  war.  New  York  Life 
Ins.  Co.  r.  Stathem,  512;  and  510  n. 

Contracts,  private,  498-520. 


INDEX.  941 

Contributions  and  requisitions,  §  Ifil. 

Convoy  —  vessel  sailing  under  armed  convoy  to  avoid  visitation  and  search, 
subject  to  condemnation,  The  Maria,  858;  The  Nancy,  861;  vessel  sail- 
ing under  convoy  is  presumed  to  remain  under  convoy,  and  therefore  liable 
to  capture,  right  of  search  implies  right  to  use  force,  if  necessary,  in  its 
execution,  The  Brig  Sea  Nymph,  869;  see  also  search,  right  of;  visit  and 
search. 

Cooley.i'.  Golden  —  river  boundary  is  changed  by  accretion,  but  avulsion  or 
sudden  change,  or  abandonment  of  channel  does  not  affect  the  boundary, 
129. 

Cornu  V.  Blackburne  —  ransom  bills  held  either  not  trading  or  permissible 
trading  with  the  enemy,  so  that  recovery  could  be  had  in  suit  thereon,  566. 

Crawford  &  McLean  v.  The  William  Penn  —  hypothecation  of  vessels  in  enemy 
•    port  for  purpose  of  repairs  held  not  trading  with  enemy,  580. 

Crawford  v.  The  William  Penn  —  voluntary,  not  involuntary  trading  with  the 
enemy,  illegal,  575. 

Credentials  of  diplomatic  agents,  §  96. 

Creole,  The  —  internal  order  and  regulation  of  merchant  ship  in  foreign  port 
held  not  subject  to  municipal  law  of  such  port,  252. 

Crime  —  committed  beyond  the  jurisdiction  of  United  States  not  punishable 
in  United  States,  United  States  o.  Smiley,  302;  committed  within  juris- 
diction of  foreign  country  not  triable  in  United  States,  United  States  v. 
Davis,  291;  committed  in  New  York,  not  punishable  in  New  Jersey,  State 
V.  Wyckoff,  296;  and  300  n.,  301  n.  ;  committed  in  one  state  to  take  effect 
in  another,  punishable  in  latter.  Commonwealth  v.  Blanding,  300  n.  ;  Cut- 
ting's  case,  301  n. 

Cushing,  Adm'r,  v.  United  States  —  decision  of  prize  court  binds  parties  thereto, 
but  does  not  estop  government,  which  may  proceed  diplomatically  against 
country  of  prize  court  for  failure  or  miscarriage  of  justice,  927. 

Cutting's  case — crime  committed  in  one  country  to  take  effect,  and  which 
actually  does  take  effect,  in  another,  punishable  in  latter,  301  u. 


Dalgeish  v.  Hodgson — judgment  of  prize  court  conclusive  in  points  neces- 
sarily involved  and  clearly  upon  face  of  sentence,  926. 

Darby  v.  The  Brig  Erstern  —  though  neutral  vessel  protects  enemy  goods  on 
board,  unneutral  conduct  w'ill  forfeit  the  protection,  896. 

Deceit,  how  far  permitted  in  war,  §  129. 

Declaration  of  Paris,  1856,  §  131;  898  n. 

Declaration  of  St.  Petersburg,  §  114. 

Declaration  of  War  —  war  without  declaration,  civil  war,  date  of  beginning 
of  war,  §  117. 

Debts  —  interest  on.  §  135;  of  a  state  due  enemy,  and  interest  thereon,  are  not 
confiscable,  §  132;  due  the  enemy  legally  may  be,  but  from  motives  of  policy 
generally  are  not,  confiscated,  Hamilton  v.  Eaton,  481 ;  Ware  v.  HyUon, 
485  n. ;  due  the  enemy,  and  private  property  in  country  at  outbreak  of  war, 
confiscable  by  law  of  nations.  In  United  States  act.  of  Congress  necessary 
to  confiscate  them.  Brown  v.  United  States,  486  ;  and  493  n. 


942  INDEX. 

De  Bilboa  Packet,  The  —  goods  shipped  in  time  of  war,  or  in  contemplation 
thereof,  held  to  belong  to  consignee,  if  consignee  enemy,  property  con- 
demned, 009. 

De  Facto  States,  §  23 ;  see  States. 

De  Haber  v.  Queen  of  Portugal  —  foreign  sovereign  may  not  be  sued  without 
consent,  180. 

De  Jarnett  v.  De  Giversville  —  sale  of  property  within  Northern  lines  held  valid 
after  publication  of  notice  to  parties  within  Confederate  lines,  542. 

Despatches  and  persons  as  contraband,  §  181 ;  see  also  Contraband. 

De  Wutz  V.  Hendricks  —  loan  of  money  to  insurgents  illegal,  721. 

Devastation  —  is  it  ever  lawful  ?  §  127. 

Diplomatic  agents  —  persons  designated  by  the  constitution  of  a  state  to  man- 
age its  foreign  affairs,  department  of  foreign  affairs,  state  department  in 
the  United  States,  §  95 ;  rights  of ;  refusal  to  receive  ;  must  be  a  persona 
grata;  credentials;  letters  of  credit ;  letters  patent  ;  full  powers;  instruc- 
tions ;  passport,  §  96  ;  right  of  legation  ;  rights,  privileges,  and  duties  of, 
§  53 ;  rights  and  immunities  of,  in  friendly  states,  on  the  way  to  and  from 
their  posts,  §  98;  immunities  of,  §§  54,  55;  see  also  Heathfield  v.  Chilton, 
189;  termination  of  mission,  recall,  and  dismissal,  §  97;  may  not  be  sum- 
moned as  witness,  Guiteau's  Trial,  196  n. ;  exempt  from  criminal  juris- 
diction, 191  n.  ;  exempt  from  civil  jurisdiction,  192  n.;  exempt  from  suit 
in  third  country,  Wilson  v.  Blanco,  206;  see  also  Ambassadors. 

Discovery,  acquisition  of  title  by,  Johnson  and  Graham's  Lessee  v.  Mcintosh, 
71 ;  §  34. 

Dole  V.  ]\Ierchants'  Mutual  Marine  Insurance  Co. — definitions  and  kinds  of 
war,  470. 

Domicile  —  nature  and  definition  of,  Mitchell  i\  United  States,  605 ;  commer- 
cial, 585-607  ;  time  most  important  element,  The  Harmony,  585  ;  effect  of, 
and  declaration  of  intention  to  become  a  citizen,  upon  nationality  of 
foreigner  ;  his  relation  to  adopting  state,  when  abroad,  and  protection  it 
may  accord  him,  §  91;  what  constitutes,  how  determined;  animus  manendi; 
time,  §  148 ;  national  character  of  property  in  time  of  war  depends  upon  the 
domicile  of  owner,  French  rule,  §  147;  American  citizen  domiciled  in  enemy 
country  is  enemy,  and  goods  shipped  before,  but  captured  after  outbreak 
of  war,  lawful  prize.  The  Venus,  591 ;  unsold  produce  of  enemy  soil  is  hos- 
tile, irrespective  of  domicile  of  owner  of  soil,  Bentzen  r.  Boyle,  598  ;  neutral 
merchant  residing  in  enemy  country  treated  as  belligerent  trader;  enemy 
character,  however,  lost  the  moment  he  starts  home.  The  Indian  Chief,  588; 
property  of  persons  residing  within  Confederate  States  during  civil  war, 
and  engaged  in  commerce  upon  the  sea,  is  enemy  property  and  subject  to 
capture,  The  Pi'ize  cases,  601. 

Don  Pacifico,  Case  of  —  country  may  protect  its  citizen  abroad  against  denial  of 
justice  by  resort  to  reprisals  or  war,  if  necessary,  45  n.,  450. 

Duty  of  suV)ject  or  citizen  to  return  home  on  outbreak  of  war,  556-565. 

Em<  ;•.  Wilkins  —  Indian  born  within  United  States,  but  unnaturalized  and 

untaxed,  not  citizen  of  United  States,  398;  §  93. 
Kills  V.  Mitchell  —  consul  may  not  exercise  jurisdiction  over  crew  of  home  ship, 

unless  authorized  so  to  do  by  treaty,  231 ;  §  58. 


INDEX.  943 

Emanuel,  The  —  neutrals  may  not  carry  on  trade,  such  as  coasting  trade,  from 
which  they  are  excluded  in  peace,  847. 

Embargo,  hostile,  §  116;  definition  and  nature  of,  The  Boedes  Lust,  460-463. 

Enemy  character,  §§  147-150;  see  also  Domicile. 

Eueniy  property  —  product  of  the  enemy's  soil  takes  national  character  of  the 
country  where  it  is  produced,  §  150  ;  right  to  capture  enemy  goods  in  neutral 
vessels,  and  neutral  goods  in  enemy  vessels,  §  190;  enemy  goods  in  neutral 
vessel  protected,  though  unneutral  conduct  will  forfeit  the  protection. 
Darby  v.  The  Brig  Erstern,  896  ;  and  898  n.  ;  found  on  the  sea  or  in  the 
ports  of  enemy,  is  confiscable  as  prize  of  war,  §  134 ;  found  afloat  in  ports, 
on  the  breaking  out  of  war,  was  generally  confiscable  as  prize  until  recent 
time,  §  131  ;  compared  with  embargo,  §  131  :  public  property  of  the  enemv, 
lands,  buildings,  archives,  work  of  art,  movable  or  personal  property,  §  159; 
private  property,  real  and  personal,  as  a  rule,  is  not  confiscable,  at  least  not 
by  way  of  booty,  though  personal  property  may  be  taken  by  way  of  con- 
tributions and  requisitions,  §  160  ;  comparison  of  different  rules  applied  to 
enemy  property  at  sea  and  on  land,  §  160;  immovable  property,  lands 
and  houses,  of  the  enemy  within  the  limits  of  the  other  belligerent  are 
never  confiscated,  §  133;  goods  placed  on  neutral  vessel  consigned  to 
enemy  port,  or  some  other  maiket,  are  enemy  property  and  may  be  cap- 
tured. In  this  case  neutral  vessels  in  voyage  from  Vigo  to  Seville  held 
engaged  in  coasting  trade  of  enemy,  The  Atlas,  895;  see  Enemy,  trade  of; 
Trade. 

Enemy,  trade  of  —  goods  placed  on  neutral  A^essel  consigned  to  enemy  port,  or 
some  other  market,  are  enemy  property,  and  may  be  captured,  The  Atlas, 
895 ;  see  Enemy  property. 

Equality  of  states,  §  15. 

Equipment  —  augmentation  of  force  or  equipment  of  belligerent  cruiser  is 
illegal ;  prize  captured  after  such  augmentation  will  be  restored  if  brought 
within  neutral  waters.  The  Santissima  Trinidad,  701;  of  vessels  of  war 
in  neutral  territory,  §  174. 

Exchange  of  prisoners,  §  124;  see  also  Prisoners  of  war. 

Expatriation  —  Allegiance,  370-375. 

Exterritoriality  —  fiction  of,  §  59;  origin  and  purpose  explained,  §  59. 

Extradition — leading  authorities  and  references  on,  §  71;  interstate  rendition, 
§  70;  274-293;  of  fugitives  from  justice,  §  67;  person  extradited  is  triable 
for  offence  for  which  he  was  extradited,  but  for  no  other,  §  67;  states  do 
not  as  a  rule  surrender  person  charged  with  political  or  military  offences, 
§  69 ;  as  a  person  is  extradited  for  the  commission  of  a  conventional  crime, 
the  nationality  of  criminal  is  immaterial;  however,  it  is  customary  to 
exclude  citizens  of  the  contracting  states  from  operation  of  the  provision  of 
treaty,  §  68  ;  states  do  not  as  a  rule  surrender  their  own  citizens,  Trimble's 
case,  293  n. ;  exists  by  virtue  of  treaty,  and  fugitive  only  triable  for  crime 
for  which  extradited.  United  States  v.  Rauscher,  274. 

Extraterritorial  —  acts  by  order  of  the  state  bind  state  but  not  agent,  Buron  r. 
Denman,  305;  McLeod's  case,  67  n.,  309  n.;  acts  of  persons  by  order  of 
their  government,  §  72  ;  acts  done  by  a  state  in  self-defence,  §  73;  308- 
319;  acts  by  a  state  in  self-defence  bind  state  but  not  agent,  Common- 


944  INDEX. 

wealth  V.  Blodgett,  308;    The  CaroHne,  67,  and  319  n. ;    The  Yirginius, 
320  n.,  322  n. 
Extraterritorial  crimes  —  see  Offences  committed  abroad,  jurisdiction  of,  §  65; 
see  also  Crime. 


FisHERiKS  —  alleged  right  of  the  United  States  in  the  British- American,  §  29; 
convention  of  1818  between  England  and  United  States,  §  101. 

Fishing-boats  —  generally  exempt  from  seizure,  but  exemption  does  not  extend 
to  vessels  employed  in  the  great  fisheries,  §  155. 

Flad  Oyen,  The  —  judgment  of  prize  court  in  neutral  country  does  not  change 
title,  919. 

Flags  of  truce,  §  146. 

Fleming  v.  Page  —  goods  imported  into  United  States  from  IMexico  during 
American  occupation  thereof  subject  to  duty  as  imported  from  foreign 
country,  659. 

Flindt  V.  Scott  —  insurance  policy  on  licensed  trade  with  enemy  good,  526;  and 
529  n. 

Florida,  The  —  capture  in  neutral  waters  is  unlawful,  699. 

Fong  Yue  Ting  —  aliens  residing  within  United  States  may,  by  the  law  of 
nations,  be  expelled  therefrom,  382. 

Forbes  v.  Cochrane  —  refusal  to  surrender  or  to  aid  in  the  delivery  of  slaves 
escaping  to  man-of-war,  in  foreign  port,  held  not  actionable,  258. 

Foreign  sovereigns,  §  52;  see  also  Sovereigns. 

Foreigners  —  offences  committed  abroad  by,  §  65;  exemption  from  military 
duty,  §  64. 

Fortuna,  The  —  captor  allowed  freight  for  carriage  of  neutral  property  to  place 
of  destination,  631. 

Foster  &  Elam  v.  Neilson  —  treaty  is  a  contract  between  two  or  more  nations; 
in  the  United  States  it  is  law  of  the  land,  412;  the  political  department 
determines  questions  of  boundary  between  United  States  and  foreign 
nations,  76. 

Franciska,  The  —  in  case  of  tie  facto  blockade,  blockade  runner  must  be  taxed 
directly  or  indirectly  with  knowledge  of  its  existence,  804. 

Free  ships,  Free  goods,  §  190. 

Freight  —  its  nature  considered  and  defined,  Hooper,  Adm'r,  v.  United  States, 
G33;  in  the  case  of  captured  vessels,  §  156. 

Freight  and  liens,  629-648;  captor  allowed  freight  for  carriage  of  neutral 
property  to  place  of  destination,  The  Fortuna,  631;  freight  properly 
charged  upon  whole  cargo,  i.e.,  upon  that  restored  as  well  as  upon  that 
condemned,  The  Antonia  Johanna,  632;  previous  or  subsisting  liens  on 
captured  ship  not  respected  in  prize  court.  The  Carlos  F.  Roses,  637 ;  neu- 
tral carrier  of  enemy  property  generally  allowed  freight;  in  this  case 
freight  postponed  to  captor's  law  expenses.  The  Vrow  Ilenrica,  029. 

Fourteen  Diamond  Rings /i.  United  States  —  territory  definitely  ceded  to  United 
States  ceases  to  bo  foreign  territory  from  ratification  of  treaty  of  cession, 
607. 

Fugitives  from  justice,  see  Extradition.  "' 


INDEX.  945 

Furtado  v.  Rodgers. —  insurance  effected  in  Great  Britain  on  French  ship,  pre- 
vious to  war  between  Great  Britain  and  France,  does  not  cover  a  loss  by 
British  capture,    549. 


Geneva  award,  715. 

Geneva  convention,  §  125. 

Geofroy  v.  Riggs  —  treaty  as  law  of  land  subject,  in  the  United  States,  to  con- 
stitutional limitations,  413. 

Gerasimo,  The  —  vessel  leaving  blockaded  port  temporarily  occupied  by  enemy 
not  liable  to  capture ;  prohibition  to  import  does  not  necessarily  extend  to 
export,  811. 

Goodrich  v.  Gordon  —  contract  for  ransom  of  vessel  held  lawful  contract,  571. 

Grant,  President,  message  of  —  expatriation,  .374  n. 

Grapeshot,  The  —  during  civil  war.  President  possessed  right  as  Commander- 
in-chief  to  establish  provisional  courts  to  try  causes  arising  under  laws  of 
state  and  nation,  666  n. 

Gray,  Adm'r,  v.  United  States  —  reprisals,  definition  and  nature  of,  452. 

Griswold  V.  Waddington  —  partnership  existing  between  citizens  of  belligerent 
states  dissolved  by  outbreak  of  war ;  notice  of  dissolution  unnecessary, 
504. 

Guarantee  treaties,  §  106. 


Hague  Conference,  The,  §  125. 

Hamilton  v.  Eaton  —  debts  due  the  enemy  legally  may  be,  but  from  motives  of 

policy  generally  are  not  confiscated,  481. 
Handly's  Lessee  v.  Anthony  —  middle  of  river  is  boundary,  unless,  as  in  this 

case,  parties  determined  otherwise,  116. 
Hanger  v.  Abbott  —  statute  of  limitations  ceases  to  run  during  war,  500. 
Harcourt  v.  Gaillard  —  grants  of  American  territory  made  by  British  authority 

after  Declaration   of   Independence   void,    unless  confirmed  by  treaty  of 

peace,  70. 
Harmony,  The  —  in  matter  of  domicile,  time  most  important  element,  585. 
Haver  i-.  Yaker  —  treaty  dates  from  signing,  in  case  involving  individual  rights, 

from  ratification,  420,  421  n. 
Heathfield  v.  Chilton  — diplomatic  agents  and  servants  bond  Jide  in  their  emiAoj 

exempt  from  suit,  but  exemption  does  not  apply  to  consuls,  189. 
Heirn  v.  Bridault  —  definition  of  international  law,  1. 
Helen,  The  —  municipal  law  does  not  forbid  neutral  to  trade  with  blockaded 

port,  but   the  law  of  nations  subjects  neutral  property,  in  such  case,  to 

capture  and  confiscation,  821. 
Helena,  The  —  Barbary  States,  how  far  subject  to  international  law,  45. 
Hi<j;h  seas  —  straits  and  lakes,  part  thereof.  United  States  v.  Rodgers,  132. 
Hoare  i-.  Allen — interest  on  debts  suspended,  not  extinguished,  during  war, 

498. 

Home  Insurance  Company's  case  —  the  legal  status  of  the  Confederate  States  as 

defined  by  United  States  courts,  59. 

60 


946  INDEX. 

Honduras,  Republic  of,  r.  Soto  —  state  is  a  moral  person,  24. 

Hoop,  The  —  trade  with  the  enemy  without  license  held  void  in  admiralty 
court,  521. 

Hooper,  Adm'r,  r.  United  States  —  treaties  other  than  in  rem  extinguished  by 
war,  43.3 ;  lb.,  nature  of  freight  considered  and  defined,  G33. 

Hostile  expeditions,  fitting  out,  §  173. 

Hostile  occupation,  conquest,  cession,  655-674 ;  see  also  Occupation,  Conquest, 
Cession. 

Hypothecation  of  vessels  in  enemy's  port  for  purpose  of  repairs,  held  not  trad- 
ing with  enemy,  Crawford  &  McLean  r.  The  William  Penn,  580. 


Imina,  The  —  contraband  goods  should  be  taken  in  voyage  to  enemy  port ;  pro- 
ceeds not  generally  liable  on  return  voyage,  776. 

Immanuel,  The  —  neutrals  may  not  engage  in  trade  from  which  they  are  ex- 
cluded in  peace,  815. 

Impressment  of  seamen,  §§  77,  189. 

Incorporeal  things  —  as  debts,  etc.,  invader's  right  over,  §  167. 

Indelible  allegiance,  §  87. 

Independence,  recognition  of  —  views  of  J.  Q.  Adams,  41-45  n. 

Indian  Chief,  The  —  neutral  merchant  residing  in  enemy  country  treated  as 
belligerent  trader;  enemy  character,  however,  lost  the  moment  he  starts 
home,  588. 

Indians  — status  of,  in  United  States,  398-412;  §  94. 

Insurance  —  on  ships  of  the  enemy,  §  144  ;  effected  in  Great  Britain  on  French 
ship,  previous  to  war  between  Great  Britain  and  France,  does  not  cover  loss 
by  British  capture.  Furtado  i-.  Rodgers,  540  ;  and  553  n. 

Insurgents  —  aid  to,  721-760,  §  177;  loans,  munitions  of  war,  §  177;  may  be 
held  pirates  for  depredations  against  third  powers,  The  Magellan  Pirates, 
351;  loan  of  money  to,  illegal,  Thompson  v.  Powles,  37;  De  Wutz  i-.  Hen- 
dricks, 721 ;  Kennett  v.  Chambers,  723 ;  British  vessel  fitted  out  in  aid 
thereof  liable  under  British  foreign  enlistment  act.  The  Salvador,  744 ;  un- 
recognized (wrongly)  held  pirates  in  United  States  v.  Ambrose  Light,  346. 

Interest  on  debts — suspended  not  extinguished  during  war,  Hoare  v.  Allen, 
498 ;  §  135. 

International  law  —  or  the  law  of  nations,  definitions  of,  §  1 ;  origin  of  the 
terms  "Law  of  Nations"  and  "International  Law,"  §  2;  is  a  branch  of 
true  law,  §  3 ;  nature  and  sources  of ,  §  4 ;  historical  sketch  of,  §  5 ;  is  a 
part  of  the  law  of  states,  §  6  ;  leading  writers  on,  §  7  ;  private,  or  the 
conflict  of  laws,  §  8. 

Interstate  rendition  —  criminal  may  be  tried  for  crime  other  than  that  for 
which  he  was  extradited.  State  v.  Patterson,  283. 

Intervention  —  character  and  conditions  of,  §  83  ;  on  the  ground  of  self-pres- 
ervation for  the  protection  of  (1)  institutions,  (2)  good  order,  (3)  the 
external  safety  of  the  intervening  state,  §  84;  against  illegal  or  immoral 
acts;  case  of  (ireece,  1826;  Bulgaria,  1876;  Cuba,  1898;  China,  1900; 
§  85 ;  under  a  treaty  of  guarantee  on  invitation  of  one  of  the  parties  to  a 
civil  war,  §  86;  ujider  collective  authority  of  the  body  of  states,  §  86. 


INDEX.  947 

Jan  Frederick,  The  —  contract  in  contemplation  of  war  or  transfer  of  colonial 
produce  in  transitu  illegal,  618. 

Jecker  v.  Montgomery  —  neither  president  nor  inferior  executive  officer  can 
establish  prize  court  in  territory  occupied  by  American  troops,  644. 

Jenkins,  Sir  Leoline  —  opinion  of,  on  piracy,  §  80:  345. 

(La)  Jeune  Eugenie  —  definition  of  international  law,  3. 

Johanna  Maria,  The  —  attempt  to  leave  blockaded  port  subjects  vessel  and 
cargo  to  condemnation,  803. 

John,  The  Schooner  —  capture  after  declaration  of  peace  invalid,  677. 

Johnson  &  Graham's  Lessee  v.  Mcintosh  —  discovery  followed  by  occupation 
gives  title  ;  European  claims  to  American  territory  considered  in  the  light 
of  international  law,  71  ;  §  34. 

Jones  I".  United  States  —  recognition  of  the  existence  of  a  state,  38. 

Jonge  Margaretha,  The  —  provisions  going  to  enemy's  port  of  naval  equip- 
ment may  be  treated  as  contraband;  vessel  property  of  same  owner 
condemned,  762. 

Joseph,  The,  see  The  Brig  Joseph. 

Jurisdiction  —  on  the  high  seas,  329-369;  over  passing  vessels,  §  63;  is  the 
jurisdiction  of  a  state  over  its  citizens  and  property  on  the  high  seas  exclu- 
sive ?  §  75 ;  are  offences  committed  by  citizens  or  foreigners,  beyond  the 
limits  of  a  state,  subject  to  the  jurisdiction  of  its  courts  ?  §  65;  criminal 
jurisdiction  of  state  courts  in  the  United  States,  §  66. 


Keith  r.  Clark  —  internal  changes  do  not  affect  identity  of  state  in  interna- 
tional relations,  28. 

Kennett  v.  Chambers  —  political  department  recognizes  independence  ;  loan  of 
money  to  insurgents  illegal,  723. 

Kershaw  i-.  Kelsey  —  all  trade  across  enemy  lines  without  license  illegal,  535. 

Koszta's  case  —  alien  domiciled  in  United  States,  who  has  declared  intention 
to  become  citizen,  may  be  protected  by  United  States  in  foreign  country, 
400  u. 


Lakes  —  connected  with  open  sea  considered  high  seas,  United  States  v. 
Rodgers,  132. 

Law  of  nations  —  is  part  of  common  law,  Blackstone's  Commentaries,  8  ;  see 
International  Law. 

Laws  of  war.  §§  119-129. 

Legates,  §  95 ;  see  Diplomatic  Agents. 

Legations,  right  of  asylum  in  ;  see  Asylum. 

Legislation  to  give  effect  to  treaties,  §  107. 

Letters  of  credence,  §  96. 

Letters  patent,  §  96. 

Letters  of  marque  and  reprisal,  §  123. 

License  —  trade  across  enemy  lines  without,  illegal,  Kershaw  v.  Kelsey,  535; 
to  trade,  §  146;  to  trade  must,  as  a  rule,  be  granted  by  the  supreme  au- 
thority of  the  state,  and  must  be  granted  or  assented  to  by  both  belligerents, 


948  INDEX. 

§  138 ;  to  trade  must  be  substantially  complied  with,  Williams  v.  Marshall, 
uoO;  and  530  n. ;  trade  with  the  enemy  without  license  held  void  in  admi- 
ralty court,  The  Hoop,  521 ;  trade  with  the  enemy  without  license  held 
void  at  common  law,  Potts  r.  Bell,  525  ;  Flindt  v.  Scott,  526  ;  to  trade,  in 
the  United  States  by  act  of  Congress  conferred  solely  on  President,  531  ; 
and  534  n. 

Lilla.  The  —  Prize  courts  of  Confederate  States  did  not  pass  title,  62  n. 

Littell  V.  Erie  R.  R.  Co.  —  who  are  citizens  of  the  United  States  '?  378. 

Loans  of  money  to  belligerents,  §  175  ;  aid  to  insurgents,  loans,  §  177. 

Lola,  The  — international  law  is  part  of  municipal  law  of  United  States,  19. 

(Le)  Louis  —  slave  trade  not  piracy  y«?-e  gentium,  352. 


Macdonald,  ^neas  —  at  common  law  subject  may  not  change  his  allegiance 
without  permission  of  state,  370 ;  §  87. 

McLeod's  case  —  command  of  the  state  is  bar  to  action  against  agent,  67,  309. 

Madison,  The  —  carriage  of  enemy  despatches  to  neutral  port  lawful,  785. 

Magellan  Pirates,  The — insurgents  may  be  held  pirates  for  depredations 
against  third  powers,  351. 

Mail  steamer  —  not  exempt  from  capture,  The  Panama,  788. 

Mure  clausum  and  mare  liberum,  §  49. 

Marginal  seas  —  jurisdiction  over  passing  vessels  in.  Queen  v.  Keyn,  151  ;  and 
note  to  case. 

Maria,  The  —  vessels  sailing  under  armed  convoy  to  avoid  visitation  and  search 
subject  to  condemnation,  858. 

Marianna  Flora,  The  —  held  inter  alia  that  vessel  suspected  of  piracy  may  be 
visited,  searched,  and  captured  by  any  nation ;  right  of  search  in  other  cases 
does  not  exist  in  peace,  it  is  belligerent  right,  873. 

^Maritime  War,  §  123;  requisitions  and  contributions  in  land  wars;  will  they 
be  resorted  to  in  maritime  wars?  §  161. 

Marque  and  reprisal  —  letters  of,  §  123. 

Mary  Ford,  The  —  property  captured  but  abandoned  by  enemy  rescued  by 
neutral  liable  to  salvage,  642. 

Matthews  r.  iSIcStea  —  The  civil  war  did  not  of  itself  dissolve  partnerships 
between  citizens  of  North  and  South;  dissolution  was  effected  by  Presi- 
dent's proclamation  of  Aug.  16,  1861,  508. 

Mediation,  §  113. 

Mentor,  The  —  capture  after  declaration  of  peace  invalid,  676. 

Merchant  vessels,  225-255;  jurisdiction  over,  on  the  high  seas,  §  78;  of  the 
United  States  on  high  seas  subjeqt  to  jurisdiction  of  United  States,  Wilson 
V.  McNamee,  329;  theory  of  the  territoriality  of,  §  76  ;  in  foreign  ports, 
subject  to  jurisdiction  thereof.  United  States  v.  Diekelman,  264,  and  273- 
275  n. ;  in  foreign  port  always  subject  to  municipal  law  of  such  port;  Init 
see  The  Creole,  252;  national  character  of,  and  their  transfer  during  war 
from  a  belligerent  to  a  neutral,  §  153  ;  proofs  of  the  national  character  of, 
§  154  ;  do  not,  as  a  rule,  enjoy  exemption  from  local  jurisdiction  in  foreign 
ports  ;  the  exemption,  if  it  exist,  is  the  residt  of  a  special  custom  based 
ujKjn  a  tacit   or   express   renunciation   of   territorial  sovereignty,   §    58 ; 


INDEX.  949 

subject,  unless  exempt  by  express  treaty,  to  civil  and  criminal  jurisdiction 
of  foreign  port;  French  rule  otherwise,  Wildenhus'  Case,  225,  American 
citizen  on  British  vessel  on  high  seas  subject  to  jurisdiction  of  Great 
Britain,  Regina  v.  Anderson,  331  ;  vessel  owned  by  British  subjects  subject 
in  Chilian  waters  to  Chilian  jurisdiction,  on  high  seas  to  British  jurisdic- 
tion ;  Chilian  prisoners  may  therefore  bring  action  for  false  imprisonment 
on  arrival  in  British  port,  Regina  v.  Lesley,  337  ;  see  also  Ships  of  war. 

Mexico,  Republic  of,  v.  Arrangoiz  —  foreign  state  or  sovereign  may  sue  in  state 
or  federal  courts,  170. 

Military  occupation,  see  Occupation,  military. 

Miller  v.  The  Resolution  (1)  —  The  mere  capture  or  illegal  capture  of  property 
does  not  pass  title  to  captor,  899. 

Miller  v.  The  Resolution  (2)  — judicial  proceeding  in  prize  court  necessary  to 
pass  title;  evidence  required  for  condemnation  comes,  in  first  instance,  from 
ship  and  its  papers,  90(5;  and  909  n. 

Ministers,  see  Diplomatic  agents.  Ambassadors. 

Minneapolis  v.  Reum  —  declaration  of  intention  does  not  clothe  alien  with 
rights  of  citizenship,  390. 

[Mississippi,  navigation  of,  §  42. 

Mitchell  V.  United  States  —  nature  and  definition  of  domicile,  605. 

Mob  violence  —  injury  to  foreigners  by,  320-328,  and  328-329  n.  ;  responsi- 
bility for  injury  to  foreigners  by  civil  commotions  and,  §  7-1  ;  New  Orleans 
not  responsible  for  injury  to  foreigners  by,  Xew  Orleans  v.  Abbagnato, 
320 ;  United  States  government  liable  by  international  if  not  by  constitu- 
tional law  for,  328-329  n. 

Moses,  In  re  — rights  of  citizenship  do  not  attach  by  mere  declaration  of  inten- 
tion, 396. 

Municipal  seizures  —  may  not  be  made  beyond  the  three-mile  limit,  343  ;  Church 
V.  Hubbard,  The  Itata;  beyond  the  three-mile  limit,  §  79. 

Munitions  of  war,   see  Arms,  Ammunitions. 


Nancy,  The  —  absence  of  blockading  fleet  excuses  entry  and  departure  during 
such  absence,  817. 

Nation  —  definition  and  character  of,  36  n. 

Nationality  —  doctrines  of  indelible  allegiance  and  expatriation,  §  87;  of  chil- 
dren born  abroad,  of  illegitimate  children,  of  married  women,  §  90;  per- 
sons destitute  of,  "  Heimatlosen,"  §  92  ;  see  also  Domicile. 

Naturalization  —  condition  of  a  naturalized  citizen  who  subsequently  returns  to 
his  native  land;  §  89;  see  also  Citizenship. 

Navigation  of  rivers,  see  Rivers,  navigation  of. 

Navy,  volunteer,  §  123. 

Neptunus,  The  —  blockade  by  notice  and  blockade  de  facto  ;  when  notice  is 
required,  796. 

Nereide,  The  —  neutral  may  charter  and  ship  goods  on  armed  belligerent  vessel; 
is  not  responsible  for  resistance  of  belligerent  vessel  provided  said  neutral 
did  not  aid  in  armament  or  resistance,  884 ;  lb.,  definition  and  nature  of 
reprisals,  451. 


950  INDEX. 

Xeustra  Seiiora  de  los  Dolores  —  right  of  claimant  upon  declaration  of  peace 
revived  unless  property  condemned  or  forfeited,  681. 

Neutral  duties,  §§  173-177. 

Neutral  natioua  —  vv'ill  not  take  jurisdiction  of  captures  made  by  belligerent 
men-of-war,  United  States  v.  Peters,  697. 

Neutral  property  —  visit  and  search  of,  858-899;  unlawful  capture  of,  does  not 
pass  title  to  captor,  Miller  v.  The  Resolution  (1),  899;  neutral  may  charter 
and  ship  goods  on  armed  belligerent  vessel  and  is  not  responsible  for  resist- 
ance of  belligerent  vessel  provided  said  neutral  did  not  aid  in  armament 
or  resistance,  The  Nereide,  884. 

Neutral  territory  —  equipment  of  vessels  in,  §  174,  692-720;  neutrals  should 
not  permit  their  territory  to  be  used  for  hostile  purposes  by  either  belligei'- 
ent,  §  173. 

Neutral  trade  —  neutrals  may  not  carry  on  trade,  such  as  coasting,  from  which 
they  are  excluded  in  peace,  The  Emanuel,  847 ;  neutrals  may  not  engage  in 
trade  from  which  they  are  excluded  in  peace,  The  Immanuel,  845;  neutral 
citizens  may  send  armed  vessels  to  belligerent  ports  for  sale  if  venture  is 
bona  fide  commercial  transaction,  The  Santissima  Trinidad,  701. 

Neutral  waters  —  captures  in,  684-691;  capture  in,  illegal.  The  Anna,  684; 
capture  of  vessels  in,  §  173;  capture  in,  illegal,  but  only  neutral  has  right 
to  complain,  Commodore  Stuart's  case,  910;  capture  in,  illegal,  The  Twee 
Gebroeders,  687;  capture  in,  unlawful.  The  Florida,  690;  capture  in,  good 
as  between  enemies,  although  rights  of  neutral  are  violated  ;  captured  vessel 
beginning  attack  forfeits  claim  to  protection,  The  Anne,  688. 

Neutralitet,  The  —  carriage  of  contraband  does  not  as  a  rule  involve  confisca- 
tion of  ship,  767. 

Neutrality — violated  by  fitting  out  vessel  in  aid  of  unrecognized  insurgent 
communities  or  insurgents,  The  Three  Friends,  748;  neutral  ports  may 
not  be  used  for  building,  equipping,  or  base  of  supplies  for  either  belliger- 
ent. The  Alabama  Claims,  713  ;  vessel  built  in  United  States  subsequently 
sold  or  sent  as  commercial  venture  not  violation  of  neutrality  laws,  United 
States  V.  Meteor,  711 ;  fitting  out  in  neutral  port  to  cruise  against  belliger- 
ent is  violation  of  neutrality  laws,  United  States  v.  Quincy,  706. 

Neutrality  act  of  United  States,  §  174  ;  692.  British  Foreign  Enlistment  Act, 
§  174;  693. 

Neutralized  states,  §  14;  see  also  States. 

Neutrals  —  relations  between,  and  belligerents,  historical  sketch  of  the  subject, 
172 ;  may  not  engage  in  a  trade  during  war  from  which  they  were  excluded 
in  time  of  peace,  §  184. 

New  Orleans  v.  Abbagnato  —  held  New  Orleans  not  responsible  for  injuries  to 
foreigners  by  mob  violence,  320;  incorrectly  held  that  United  States  gov- 
ernment is  not  responsible  therefor,  328-329  n. 

New  Orleans  Mob  (1891),  §  74;  328-329  n. 

New  Orleans  Riot  (1851),  §  74;  327  n. 

New  York  Life  Insurance  Co.  v.  Stathera — executory  contracts,  if  time  is 
material  and  of  essence,  are  annulled  by  war;  life  insurance  policies  are  of 
this  character,  but  assured  is  entitled  to  equitable  value  of  policy  at  time 
of  outbreak  of  war,  512. 


INDEX.  951 

(La)  Ninfa  —  award  under  arbitration  treaty  has  force  of  law,  443. 
Xon-combatants  —  who  are,  §  1'21. 
Xuncio,  §  95;  see  Diplomatic  agents. 


Obligatiox  of  treaties,  see  Treaties. 

Occupation  —  as  a  mode  of  acquiring  territory,  §  35. 

Occupation,  de  facto  and  constructive,  §  105. 

Occupation,  law  of  —  tendency  to  change,  §  37;  Berlin  Conference,  1885,  §  37. 

Occupation,  military  —  general  character  of  the  right  and  jurisdiction  of  an 
invader  over  territory  occupied  by  his  armies,  old  theories,  modern  views, 
§  163;  relation  of  the  territory  occupied  to  the  government  of  the  invader, 
to  that  of  the  state  invaded,  §  164 ;  American  port  in  occupation  of  British 
forces  is  British  port  during  such  occupation,  and  goods  imported  during 
such  occupation  not  liable,  after  evacuation,  to  American  duty,  United 
States  V.  Rice,  655;  goods  imported  into  United  States  from  Mexico  during 
American  occupation  thereof,  subject  to  duty  as  imported  from  foreign 
country,  Fleming  v.  Page,  659  ;  neither  President  nor  inferior  executive 
officer  can  establish  prize  court  in  territory  occupied  by  American  troops, 
Jecker  v.  IMontgomery,  664 ;  during  civil  war  President,  as  Commander-in- 
chief,  may  establish  provisional  courts  in  occupied  districts.  The  Grapeshot, 
666  n. 

Occupier  —  right  of,  over  the  persons  of  the  territory  occupied,  —  "  War  Rebel," 
§  16.6. 

Ocean,  The  —  merchandise  shipped  by  land  or  inland  navigation  from  block- 
aded port  to  a  port  not  blockaded,  not  liable  to  confiscation  for  breach 
of  blockade,  819. 

Oddy  f.  Bovill  —  judgment  of  prize  court  in  country  of  ally  passes  title,  924. 

Offences  —  committed  abroad,  jurisdiction  of,  294-304. 

Offences,  political,  see  Political  offences. 

Olinde  Rodrigues,  The  —  blockade,  to  be  binding,  must  be  effective  ;  presence 
of  a  single  cruiser  held  sufficient,  835. 

Oregon  Territory,  §  34. 

Orozembo,  The  —  carriage  of  military  persons  in  neutral  vessel  subjects  vessel 
to  confiscation,  786. 


Pacific,  blockade,  §  115;  see  also  Blockade. 

Pacifico,  Don,  §  115 :  see  Don  Pacific©. 

Packet  de  Bilboa,  The,  see  De  Bilboa  Packet,  The. 

Panaghia  Rhomba,  The  —  master  is  agent  for  cargo  as  well  as  ship,  therefore 

attempt  of  master  to  enter  blockaded  port  affects  cargo,  800. 
Panama,  The  —  mail  steamship  not  exempt  from  capture  by  law  of  nations, 

788. 
Panama  Canal,  §  50.  , 

Paquette  Ilabana,   The  —  international  law  is  part  of  municipal  law  of    the 

United  States,  19. 
Parkinson  v.  Potter  —  diplomatic  agent  exempt  from  suit,  192. 


952  INDEX. 

Parlement  Beige.  The  —  public  ship,  other  than  ship  of  war,  exempt  fron.  civil 
and  criminal  jurisdiction  of  foreign  port,  220. 

Parole,  §  124. 

Partnership  —  the  civil  war  did  not  of  itself  dissolve  partnerships  between 
citizens  of  the  Xorth  and  South  :  dissolution  was  effected  by  President's 
proclamation  of  Aug.  16,  1861,  Matthews  v.  ilcStea,  508  :  existing  between 
citizens  of  belligerent  states  dissolved  by  outbreak  of  war ;  notice  of  dis- 
solution unnecessary,  Griswold  v.  Waddington.  504. 

Patrixent,  The  —  held  that  the  hostage  must  first  be  shown  to  be  detained  or 
dead  before  action  can  be  maintained  against  master  or  owner,  569. 

Peace  —  capture  made  after  declaration  of,  invalid.  Bain  v.  Speedwell,  675; 
The  Mentor.  676;  The  Schooner  John,  677;  rights  of  claimant  upon  dec- 
laration of.  revived  unless  property  condemned  or  forfeited,  Neustra  Seiiora 
de  los  Dolores,  681;  effect  of  treaties  of,  §  169. 

Perkins  v.  Rogers  —  summary  of  the  law  of  nations  on  trade  with  enemy,  554. 

Peterhoff.  The  —  definition  and  kinds  of  contraband.  760. 

Pious  Fund  Case,  The  —  first  decision  of  the  Permanent  Court  of  Arbitration, 
449  n. 

Piracy,  13;  345—369;  opinion  of  Sir  Leoline  Jenkins,  §80;  345;  definition 
and  character  of,  jure  gentium,  §  80  :  may  rebels  and  insurgents  be  regarded 
as  pirates  ?  §  81  ;  by  municipal  law,  §  81  ;  slave  trade  is  not  piracy,  yure 
fjentium,  §  82 ;  Le  Louis,  352. 

Political  department  —  recognizes  existence  of  a  state,  37-44. 

Political  offences  —  not  subject  to  extradition.  In  re  Castioui,  285,  and  293- 
294  n. 

Postliminium,  in  international  law,  §  170. 

Potts  V.  Bell  —  trade  with  the  enemy  without  license  held  void  at  common  law, 
525. 

Pre-emption  in  matter  of  contraband.  775,  776  n. 

Prescription  —  gives  valid  title  to  territory  by  the  rules  of  international  law, 
§38. 

President — of  United  States  may  not  be  made  defendant  in  suit.  Prioleau  u. 
United  States  and  Johnson,  173. 

Prioleau  v.  United  States  and  Johnson  —  though  President  could  not  be  made 
defendant  to  a  suit,  proceedings  stayed  until  answer  of  United  States  put 
in,  173. 

Prisoners  of  war  —  who  may  be  taken  prisoners?  treatment,  parole,  exchange, 
ransom,  §  124. 

Private  contracts,  498-520. 

Privateers,  §  123;  definition  and  nature  of,  900,  901  n. 

Prize  Cases,  The  —  civil  war  exists,  is  not  declared,  475;  property  of  persons 
residing  within  Confederate  States  during  civil  war,  and  engaged  in  com- 
merce upon  the  sea,  is  enemy  property  and  subject  to  capture,  6U1. 

Piize  courts  —  constitution  of,  in  different  countries,  §  191;  principles  and 
practice  of,  §  192;  they  are  courts  of  the  captor's  country,  §  193;  of  the 
Confederacy;  on  land  and  on  board  ships,  §  194;  property  when  con- 
demned need  not  be  within  jurisdiction  of,  925  n.;  of  Confederate  States 
di  1  not  pass  title,  The  Lilla,  6_'  n. ;  Captain  Semmes'  procedure,  932  n. ; 


INDEX.  953 

decision  of,  binds  parties  thereto,  but  does  not  estop  government:  it  may 
proceed  diplomatically  against  country  of  prize  court  for  failure  or  mis- 
carriage of  justice,  Gushing,  Adm'r,  v.  United  States,  929;  judgment  of, 
conclusive  on  points  necessarily  involved  and  clearly  upon  face  of  sentence, 
Dalgleish  v.  Hodgson,  92G;  of  ally  passes  title,  Oddy  v.  Bovill,  92-i;  judg- 
ment of.  in  neutral  country,  does  not  change  title,  The  Flad  Oven,  919; 
capture  vests  title  in  captor's  country;  title  only  passes  to  individual  captor 
by  condemnation  in  prize  court  of  captor's  country ;  capture  in  neutral 
■waters  illegal,  but  only  neutral  has  right  to  complain,  Commodore  Stewart's 
case,  910;  judicial  proceeding  in  prize  court  necessary  to  pass  title;  evi- 
dence required  for  condemnation  comes,  in  first  instance,  from  ship  and  its 
papers,  Miller  v.  The  Resolution  (2),  906;  and  909  n. 

Proclamations  —  in  civil  wars,  §  IGS. 

Property  —  in  form  of  dividend  arising  from  contract  made  before  war,  held  not 
liable  to  confiscation.  Ex  parte.  Boussmaker,  494;  state's  title  to,  §  31. 

Property  of  enemy  —  within  the  territory  and  debts  due  the  enemy,  481-497; 
see  also  Enemy  property. 

Property,  private  —  in  form  of  debts  due  enemy  held  not  confiscable  by  usage 
of  nations,  496. 

Property,  sale  of  —  within  Xorthern  lines,  held  valid  after  publication  of  notice 
to  parties  within  Confederate  lines,  De  Jarnett  v.  De  Giversville,  542 ;  and 
545  n. 

Protector,  The  —  date  of  beginning  and  ending  of  civil  war,  682. 

Protectorates  —  protected  states,  §  14:  see  also  States. 

Protectorates  —  over  semi-civilized  peoples.  "  Spheres  of  Influence."  §  43. 

Public  ships  —  immunities  of,  208-225;  other  than  ships  of  war,  exempt  from 
civil  and  criminal  jurisdiction  of  foreign  port.  The  Parlement  Beige,  220; 
other  than  men-of-war,  exempt  from  process  in  foreign  ports,  §  57. 


QuEEX  V.  Kevn  — in  absence  of  statute,  English  court  refused  to  take  jurisdic- 
tion of  offence  against  English  subject  committed  by  foreigner  on  foreign 
merchant  vessel  (The  Franconia)  within  three-mile  limit,  154;  and  note  to 
case. 


Ransom  bills  and  permissible  trading,  566-5S5. 

Ransom  bills  —  who  may  sue  thereon?  The  Charming  Xancy,  568;  permis- 
sible trading  with  the  enemy,  Cornui\  Blackburne,  566  ;  ransom  contracts, 
ransom  bill,  safe  conduct  constitute  exceptions  to  the  rule  against  trading 
-with  the  enemy,  §  145 ;  held  lawful  contract,  Goodrich  v.  Gordon,  571 ; 
should  first  be  shown  that  hostage  was  detained  or  dead  before  suit  could 
be  maintained  against  master  or  owner,  The  Patrixent,  569. 

Ransoms,  §  146. 

Rapid,  The  —  American  citizen  may  not  send  vessel  to  enemy  country  after 
outbreak  of  war  to  bring  away  property,  557  ;  lb.,  carriage  of. despatches  to 
enemy  generally  involves  confiscation  of  ship;  loss  of  time  and  expenses 
only  punishment  if  master  not  taxed  with  knowledge,  782. 


954  INDEX. 

Ratification  of  treaties,  tacit  and  express,  §  103. 

Recapture,  rescue,  649-654;  by  law  of  England  is  law  of  reciprocity  ;  question 
of  recapture  and  salvage  considered.  The  Santa  Cruz,  649 ;  recapture  and 
vesting  of  title  to  recaptured  property  in  captor,  §  157. 

Recognition  —  methods  of,  §  19  ;  The  Congo  State,  §  19;  of  belligerency,  §  24; 
have  belligerent  communities  any  legal  right  to,  by  sovereign  states?  §  25; 
forms  of,  §  25;  of  independence,  J.  Q.  Adams  on,  44-45  n. ;  when  is  rec- 
ognition by  third  states  of  a  new  state  claiming  independence  proper? 
§  18  ;  of  the  existence  of  a  state,  37. 

Red-Cross  Society,  §  125. 

Regina  v.  Anderson  —  an  American  citizen  on  British  vessel  on  high  seas  sub- 
ject to  jurisdiction  of  Great  Britain,  331. 

Regina  v.  Lesley — British  vessel  in  Chilian  waters  subject  to  Chilian  jurisdic- 
tion ;  on  the  high  seas  such  vessel  subject  to  British  jurisdiction  ;  Chilian 
prisoners  may  therefore  bring  action  for  false  imprisonment  on  arrival  of 
vessel  in  British  port,  337. 

Reliance,  The  —  United  States  courts  may  grant  salvage  for  rescue  of  foreign 
vessel  on  the  high  seas,  230. 

Reprisals  —  451-459;  definition  and  nature  of,  The  Xereide,  451  ;  Gray,  Adm'r, 
V.  United  States,  452  ;  reprisals,  retorsion,  pacific  blockade,  §  115. 

Republic  —  may  sue  in  own  name,  175. 

Republic  of  Honduras  v.  Soto  —  state  is  a  moral  person,  24. 

Republic  of  Mexico  v.  Arrangoiz  — foreign  state  or  sovereign  may  sue  in  state 
or  federal  courts,  170. 

Requisitions  —  and  contributions  in  land  wars,  will  they  be  resorted  to  in 
maritime  wars?  §  161. 

Res  ancipitis  usiis,  §  179. 

Rescue  by  neutrals,  §  158. 

Retorsion,  definition  and  nature  of,  4.59  n. ;  §  115. 

Rivers  —  as  boundaries,  Handly's  Lessee  v.  Anthony,  116;  effect  of  avulsion 
and  accretion  on  boundaries,  Cooley  v.  Golden,  129  ;  middle  or  main  chan- 
nel of,  Bnttenuth  v.  St.  Louis  Bridge  Co.,  121;  navigation  of,  §  42. 

Rivers,  navigation  of,  §  42. 

Ross, //I  re — consular  jurisdiction  in  foreign  country  exists  only  by  treaty, 
238. 

Rule  of  the  war  of  1756,  §  184. 


St.  Lawrenck,  The  —  held  that  American  citizen  may  not  bring  back  property 
from  enemy's  country  eleven  months  after  outbreak  of  war,  559. 

St.  Lawrence  —  navigation  of  the,  §  42. 

Sale  of  arms  to  France,  §  176  ;  747  n. 

Sally,  The  —  merchandise  shipped  to  become  property  of  enemy  on  arrival  con- 
demned as  enemy's  property  if  taken  in  transitu  ;  capture  considered  de- 
livery, 607. 

Salvador,  The  —  British  vessel  fitted  out  in  aid  of  insurgents  liable  under 
British  foreign  enlistment  act,  744. 

Salvage,  §  157;  recapture,  when  does  title  to  recaptured  property  vest  in  the 


INDEX.  955 

captor?  §  157  ;  not  allowed  in  neutral  property  recaptured  or  rescued  from 
enemy  unless  such  property  is  really  exposed  to  condenniation,  The  Car- 
lotta,  650;  and  654-656  n.  ;  allowed  to  ship's  master  and  boy  on  rescue  of 
vessel  from  enemy,  The  Beaver,  653;  property  captured  but  abandoned  by 
enemy,  rescued  by  neutral,  liable  for  salvage,  The  Mary  Ford,  642;  United 
States  courts  may  grant,  for  rescue  of  foreign  vessel  on  the  high  seas.  The 
Reliance,  230. 

San  Jose  Indiano  —  title  to  goods  in  transitu  and  stoppage  in  transitu,  614. 

Santa  Cruz,  The  —  in  considering  questions  of  recapture  and  salvage,  held 
that  law  of  England  on  recapture  of  property  of  allies  is  the  law  of  reci- 
procity, 649. 

Santissima  Trinidad,  The  —  neutral  citizens  may  send  armed  vessels  to  bellig- 
erent ports  for  sale  if  venture  is  bona  fide  commercial  transaction,  701. 

Sapphire,  The  —  deposition  or  change  of  sovereign  does  not  affect  or  abate 
suit,  174. 

Schooner  Exchange  v.  McFaddon  —  ships  of  war  exempt  from  civil  and  crimi- 
nal jurisdiction  of  foreign  port,  208. 

Schooner  John,  The  —  capture  after  declaration  of  peace,  invalid,  677. 

Scotia,  The  —  courts  take  judicial  notice  of  international  law,  17. 

Sea  Lion,  The  —  in  the  United  States  by  act  of  Congress  only.  President 
authorized  to  grant  license,  531. 

Seals,  protection  of,  §  189. 

Search,  Right  of  —  resistance  to  search,  ground  for  condemnation,  except  when 
resistance  is  to  extreme  and  outrageous  violence.  The  Ship  Rose  v.  United 
States,  879 ;  see  Visit  and  search. 

Seas  —  Marginal  Seas  —  subject  to  territorial  jurisdiction  of  state,  Queen  v. 
Keyn,  154  :  and  169  n. 

Self-defence,  acts  of  state  in,  §  73 ;  see  Extraterritorial  acts  by  state  in  self- 
defence. 

Semi-sovereign  states  —  The  Charkieh,  48. 

Semmes,  Captain  —  procedure  of,  in  "prize  court,"  932. 

Servitudes  in  international  law,  §  41. 

Seton  V.  Low  —  neutral  may  engage  in  trade  of  contraband  articles;  an  insur- 
ance policy  effected  on  such  goods  is  valid,  778. 

Ship  Rose  v.  United  States  —  resistance  to  search,  ground  for  condemnation, 
except  where  resistance  is  to  extreme  and  outrageous  violence,  879. 

Ships  of  war  —  exempt  from  civil  and  criminal  jurisdiction  of  foreign  port.  The 
Schooner  Exchange  v.  McFaddon,  208;  The  Constitution,  118;  see  also 
Asylum. 

Sick  —  care  of,  and  wounded  in  war,  §  125. 

Slave  trade  —  is  not  piracy, /wre  genitum,  §  82;  right  of  visit  and  search  in, 
§  189. 

Slaves  —  refusal  to  surrender,  or  to  deliver,  escaping  to  man-of-war  in  foreign 
port,  held  not  actionable,  Forbes  v.  Cochrane,  258. 

Small's  Adm'r  v.  Lumpkin's  Ex'x  — agent  in  enemy  country,  if  appointed  be- 
fore war,  may  transact  business  for  principal,  538. 

Society  for  the  Propagation  of  Gospel  v.  Wheeler —  treaty  in  rem  suspended,  not 
extinguished  by  war,  428. 


956  INDEX. 

Soil  of  enemy  country,  produce  of,  §  150. 

Sovereigns  —  rights,  privileges,  and  immunities  of,  170-189;  §52;  deposition 
of,  does  not  abate  suit,  The  Sapphire,  178 ;  domestic  or  foreign,  may  not 
be  sued  without  consent.  Beer  i'.  Arkansas,  18G ;  foreign,  may  not  be  sued, 
De  Haber  v.  Queen  of  Portugal,  180 ;  Vavasseur  v.  Krupp,  182  ;  may  sue  in 
courts  of  foreign  state,  Mexico  v.  Arrangoiz,  170 ;  may  sue  in  courts  of 
foreign  state,  §  51 ;  are  exempt  in  (1)  their  persons,  (2)  in  their  official 
representatives,  and  (3)  in  their  property  from  the  jurisdiction  of  foreign 
courts  of  law,  §  52. 

Sovereignty,  change  of  —  effect  of,  upon  public  rights  and  obligations,  §  20; 
Kent's  opinion,  96  n. ;  effect  of,  upon  laws,  §  22;  104-116;  effect  of,  upon 
private  rights,  §  21;  United  States  v.  Percheman,  95;  United  States  v. 
Repentigny,  98;  effect  of,  on  public  rights  and  obligations,  United  States 
V.  Prioleau,  85 ;  United  States  v.  Smith,  89. 

Spies,  §  129. 

State  V.  Patterson — in  interstate  rendition  the  surrendered  fugitive  triable  for 
crime  other  than  that  for  which  he  was  surrendered,  283. 

State  V.  Wyckoff  —  crime  committed  in  Xew  York,  not  punishable  in  Xew 
Jersey,  296  ;  and  300  n.  ;  301  n. 

State  —  definition  and  characteristics  of,  36  n.  ;  kinds  of,  The  Helena,  45;  defi- 
nition of,  Yrisarri  v.  Clement,  23  ;  definition  of  sovereign  state,  Texas  v. 
White,  25;  identity  of,  unaffected  by  internal  changes,  Keith  v.  Clark, 
§  12;  28;  definition  of  states  of  American  Union,  Texas  v.  "White,  25;  as 
a  moral  person,  Honduras  ;;.  Soto,  24  ;  title  to  property,  §  31 ;  rivers  of  a, 
116-132  ;  effect  of  the  recognition  of  a  new  state  by  the  parent  state,  and 
by  third  states,  §  17. 

States — definition  and  nature  of  sovereign,  §  10  ;  sovereign,  are  the  subjects 
or  persons  of  international  law,  §  9 ;  distinction  between  internal  and 
external  sovereignty  of,  §11  ;  fundamental  rights  and  duties  of,  §  13; 
classification  of ,"  Centralized  states,"  "  Personal  Union,"  "Real  Union" 
(Bundesstaat),  "  Confederate  Union,"  (Staatenbund).  Protected  state, 
Neutralized  states,  §  14;  equality  of,  §  15  ;  date  of  the  commencement  of, 
§  16  ;  de  Jure  and  de  facto,  Thorington  v.  Smith,  53  ;  acts  of  military  com- 
mander in  de  facie  or  de  jure  states.  Underbill  v.  Hernandez,  62. 

Statute  of  limitations  ceases  to  run  during  war,  Hanger  r.  Abbott,  500; 
§  135. 

Stephen  Hart,  The  —  doctrine  of  continuous  voyages  applied  in  American  civil 
war,  852. 

Stewart,  Case  of  Commodore  —  capture  vests  title  in  captors  country  ;  title 
only  passes  to  individual  captor  by  condemnation  in  prize  court  of  captor's 
country ;  capture  in  neutral  waters  illegal,  but  only  neutral  has  right  to 
complain,  910. 

Straits  and  lakes  —  United  States  v.  Rodgers,  132;  bodies  of  water  more  than 
six  njiles  wide,  §  49  a. 

Suez  Canal,  §  .50. 

Sutton  V.  Sutton  —  treaty  in  rem  suspended,  not  extinguished  by  war,  427. 


INDEX.  957 

Terlixdex  !'.  Ames  —  treaty  held  not  extinguished  by  absorption  of  one  of 
parties  tliereto,  4oG. 

Terrce  dominium  Jinilur  ubijinitur  armorum  vis,  §  48. 

Territorial  propeity  of  a  state,  §  30. 

Territorial  waters  —  history  of  attempts  to  appropriate  the  seas,  or  portions  of 
them  ;  contests  between  mare  clausum  and  mare  liberum,  §  47  ;  origin  of 
the  rule  limiting  the  territorial  right  of  a  state  in  the  sea  to  a  marine  league 
from  the  shore;  "  Terrce  dominium  _finitur  ubi  Jinilur  armorum  vis,"  §  4b  ; 
bodies  of  water  moi-e  than  six  miles  wide,  §  49. 

Territoriality  of  merchant  vessels,  §  76. 

Territory  —  acquisition  of,  by  prescription,  Rhode  Island  v.  Massachusetts  ; 
Virginia  v.  Tennessee,  74  n.  ;  acquisition  of,  Harcom't  v.  Gaillard,  70; 
acquisition  by  "alluvium  and  increment,"  The  Anna,  74  n. ;  modes  of 
acquiring,  §  32  ;  title  to,  based  on  discovery,  §  33;  title  to,  based  on  prior 
discovery  of  the  coast  and  mouths  of  rivers,  upon  occupation,  exploration, 
and  contiguity,  §  34. 

Teutonia,  The  —  war  may  exist  de  facto  without  declaration,  471. 

Texan  bonds,  94-95  n. 

Thompson  v.  Povvles  —  recognition  of  the  existence  of  a  state,  37  ;  lb.,  recog- 
nition of  statehood,  function  of  political  department,  37. 

Thorington  v.  Smith  —  definition  and  nature  of  sovereign  states,  de  facto  and 
de  jure  :  Confederate  states  held  entitled  to  rights  and  privileges  of  de  facto 
states,  53. 

Three  Friends,  The  —  fitting  out  vessel  in  aid  of  unrecognized  insurgent  com- 
munities or  insurgents  held  violation  of  neutrality  laws,  748. 

Three-mile  zone,  §  48. 

Title  acquired  by  discovery  and  occupation,  §  35. 

Tousig's  Case  —  an  unnaturalized  foreigner,  residing  in  United  States,  not  en- 
titled to  protection  if  he  return  to  'his  home  country,  401  n. 

Trade  —  license  to,  §  146  ;  house  of,  takes  national  character  of  country  in  which 
it  is  established,  §  149  ;  with  enemy,  is  wholly  interdicted  ;  in  all  cases 
illegal,  unless  under  license  of  the  state,  §  137  ;  summary  of  the  law  of 
nations  on  trade  with  enemy,  Perkins  v.  Rogers,  554  ;  with  the  enemy, 
521-556. 

Trade  with  the  enemy,  521-556 ;  see  also  Enemy,  trade  of  ;  Enemy  property. 

Transfer  in  transitu,  see  Transitu,  transfer  in. 

Transit,  ownership  of  goods  in,  607-615. 

Transitu,  capture  in  —  goods  shipped  to  become  property  of  enemy  on  arrival, 
condemned,  The  Anna  Catharina,  612;  title  to  goods  in  transitu  and  stop- 
page in  trayisitu,  San  Jose  Indiano,  614;  goods  shipped  in  time  of  war,  or 
in  contemplation  thereof,  held  to  belong  to  consignee;  if  consignee  is  enemy, 
property  condemned,  The  Packet  de  Bilboa,  §  151;  609;  merchandise, 
shipped  to  become  property  of  enemy  on  arrival,  condemned  as  enemy's 
property  if  taken  in  transitu j  capture  considered  delivery.  The  Sally,  607. 

Transitu,  stoppage  in,  §  152. 

Transitu,  transfer  in,  616-628;  §  152;  bona  fide  transfer  of  property  not  illegal, 
but  colorable  or  fraudulent  transfer  in  transitu  clearly  so.  The  Vrow  Mar- 
garetha,  616 ;  colorable  transfer  of  enemy  property  does  not  affect  liability 


958  INDEX. 

thereof  to  capture,  The  Beiieto  Estengen,  621 ;  contract  in  contemplation 
of  war  or  transfer  of  colonial  produce  in  transitu  illegal,  The  Jan  Fred- 
erick, 618;  property  may  not  change  character  in  transit  nor  does  neu- 
trality of  shipper  protect  property  consigned  for  delivery  to  enemy  port, 
The  Ship  Ann  Green,  620. 
Treaties  —  nature  and  kinds  of,  §  101;  kind  of,  not  subjects  of  international 
law,  §  102 ;  forms  of,  tacit  and  express  ratification,  §  103 ;  interpretation 
of,  §  104;  conflict  between  different,  §  105;  of  guarantee,  §  106;  legislation 
necessary  to  carry  into  effect,  §  107;  treaty  dates  from  signing,  not  from 
date  of  ratification,  §  108;  Haver  v.  Yaker,  420;  Davis  i:  Police  Jury, 
421  n. ;  obligations  of,  test  of  voidability,  §  109  ;  most  favored  nation  clause 
in  commercial,  §  110 ;  extinction  and  renewal  of,  §  111 ;  the  law  of  the  land, 
412-449;  as  law  of  the  land,  subject  to  constitutional  limitations,  Geofroy 
V.  Riggs,  413 ;  as  law  of  the  land,  treaty  takes  precedence  over  state  statute, 
Wunderle  i-.  Wunderle,  414;  not  extinguished  by  absorption  of  one  of 
parties  thereto,  Terlinden  v.  Ames,  436 ;  superseded  by  subsequent  treaty 
or  act  of  Congress  inconsistent  therewith,  Whitney  v.  Robertson,  422;  in 
rem,  suspended,  not  extinguished  by  war,  Sutton  v.  Sutton,  427;  Society  for 
Propagation  of  Gospel  v.  Wheeler,  428  ;  other  than  in  rem  extinguished  by 
war,  Hooper,  Adm'r,  v.  United  States,  433 ;  effect  of  war  upon,  between 
belligerent  states,  §  136;  of  peace,  §  168;  effect  of  treaties  of  peace  in 
settling  general  rights  and  obligations,  §  169. 

Trent,  The  — enemy  subjects  not  belonging  to  armed  or  naval  forces,  not  liable 
to  capture  in  neutral  transport,  788  n. 

Trimble's  Case  —  states  do  not,  as  a  rule,  surrender  their  own  citizens,  293  n. 

Triquet  v.  Bath  —  international  law  part  of  common  law,  6;  Jb.,  an  interpreta- 
tion of  the  Statute  of  Anne,  6. 

Troops,  transit  of,  §  173. 

Truce,  flags  of,  §  146. 

Truces,  §  146. 

Twee  Gebroeders,  The  —  capture  within  neutral  waters  illegal,  687. 

UxDEUHiLL  V.  Hernandez  —  consideration  of  de  facto  and  de  Jure  states;  mili- 
tary commander  representing  a  de  facto  government  in  the  prosecution  of 
war  not  civilly  liable  for  his  actions,  62. 

United  States  t-.  The  Active  —  War— Definition,  object,  rights  acquired  by, 
464. 

United  States  v.  Ambrose  Light  —  unrecognized  insurgents  (wrongly)  held 
to  be  pirates,  346, 

United  States  v.  Davis—  crime  committed  within  jurisdiction  of  foreign  coun- 
try not  triable  in  United  States,  294. 

United  States  v.  Diekelman —merchant  ships  in  foreign  ports  subject  in  all 
respects  to  jurisdiction  thereof,  204;  and  253-275  n. 

United  States  r.  Guinet  — held  unlawful  for  belligerents  to  arm  vessels  within 
neutral  port,  095. 

L  nited  States  r.  Jeffera  —  asylum  does  not  exist  in  legations,  256 ;  exception  in 
Central  and  Southern  American  Republics,  257-258  n. 


INDEX.  959 

United  States  v.  Kagama  —  Indians  born  within  United  States  controlled  by 
treaties  or  acts  of  Congress;  states  have  no  control  over  tribal  Indians 
within  their  boundaries,  404. 

United  States  c.  The  Meteor  —  vessel  built  in  United  States  and  sent  or  sold 
as  commercial  venture  to  belligerents  not  violation  of  neutrality  laws,  711. 

United  States  c.  Moreno  — conquest  or  cession  of  territory  works  no  change  in 
private  titles  to  land,  666. 

United  States  f.  Percheman  —  title  to  private  property  unaffected  by  cession  of 
territory,  95. 

United  States  v.  Peters  —  vessels  of  war  are  not  amenable  to  neutral  nations 
for  violation  of  sovereignty  thereof,  697. 

United  States  v.  Prioleau  —  upon  end  of  civil  war  in  1S6-3  title  to  public  prop- 
erty of  Confederate  government  vested  immediately  in  government  of 
United  States,  85. 

United  States  v.  Quincy  —  vessel  may  be  built  in  United  States,  but  if  fitted 
out  in  foreign  port,  neutrality  laws  of  United  States  not  violated.  706. 

United  States  v.  Raiischer  —  a  duty  to  extradite  exists  solely  under  treaty,  and 
fugitive  triable  only  for  crime  for  which  he  was  extradited,  274. 

United  States  v.  Repentigny  —  on  conquest  and  consequent  change  of  sover- 
eignty, inhabitants  who  do  not  remain  and  become  citizens  of  conqueror 
deprived  of  protection  to  themselves  and  property  unless  secured  by  treaty. 
If  provided  by  treaty  that  former  inhabitants  adhering  to  their  vanquished 
sovereign  may  sell  property  to  certain  class  of  persons  and  within  time 
specified,  failure  to  comply  with  treaty  by  so  selling  forfeits  or  abandons 
property  to  conqueror.  9S. 

United  States  v.  Rice  —  American  port  in  occupation  of  British  forces  is 
British  port  during  such  occupation,  and  goods  imported  during  such  occu- 
pation not  liable,  after  evacuation,  to  American  duty,  655. 

United  States  r.  Rodgers  —  rivers,  sounds,  straits,  connecting  high  seas,  are 
themselves  high  seas,  132. 

United  States  v.  Smiley  —  crime  committed  beyond  the  jurisdiction  of  United 
States  not  punishable  in  United  States,  302. 

United  States  v.  Smith —  upon  suppression  of  insurrection,  as  in  the  case  of  the 
Confederate  States,  the  public  rights  and  obligations  of  the  de  facto  (Con- 
federate States),  vest  immediately  in  the  de  Jure  government  (United 
States),  89. 

United  States  v.  Smith  —  piracy,  13. 

United  States  v.  Texas  —  definition  and  nature  of  sovereign  states  of  the 
Union,  76. 

United  States  r.  Trumbull  —  arms  and  ammunitions  delivered  to  insurgent  vessel 
in  United  States  port,  held  not  violation  of  United  States  neutrality  laws,  731. 

United  States  v.  Wagner  —  republic  may  sue  in  its  own  name,  and  need  neither 
have  nor  create  officer  to  maintain  suit  on  its  behalf,  176. 

Uti  possidetis  —  as  applied  to  territory ;  §  170. 

Vavasseur  v.  Krupp  —  foreign  sovereign  may  not  be  sued,  and  if  in  suit 
against  his  agents  he  adds  his  name  so  as  later  to  be  in  position  to  claim 
property,  he  is  not  thereby  subjected  to  jurisdiction  of  court,  1S2. 


960  INDEX. 

Venus,  The  —  American  citizen  domiciled  in  enemy  country,  is  enemy,  and 
goods  shipped  before,  but  captured  after,  outbreak  of  war,  lawful  prize,  591, 

Vessels,  merchant,  see  Merchant  vessels. 

Vessels,  see  Ships  of  war  ;  Free  ships,  Free  goods ;  Xeutral  waters. 

Viiginius,  The  —  state  may  seize  vessel  on  the  high  seas  in  self-defence,  320  n., 
322  n. 

Visit  and  search  —  of  neutral  property,  858-899  ;  right  of,  is  a  belligerent  right 
to  which  neutrals  are  subject,  §  187;  formalities  of  the  exercise  of  right 
of,  false  documents,  spoliation  papers,  §  188;  right  of,  in  time  of  peace, 
§  189 ;  vessel  sailing  under  convoy  is  presumed  to  remain  under  convoy 
and  therefore  liable  to  capture;  right  of  search  implies  right  to  use  force  if 
necessary  in  its  execution,  The  Brig  Sea  Nymph,  869 ;  vessel  sailing  under 
armed  convoy  to  avoid  visitation  and  search  subject  to  condemnation.  The 
Maria,  858,  The  Xancy,  861  ;  held,  mter  alia,  that  vessel  suspected  of  piracy 
may  be  visited,  searched,  and  captured  by  any  nation ;  right  of  search  in 
other  cases  does  not  exist  in  peace ;  it  is  belligerent  right,  The  Marianna 
Flora,  873. 

Voluntary,  not  involuntary,  trading  with  the  enemy  illegal,  Crawford  v.  The 
^A'illiani  Penn.  575. 

Volunteer  navy,  §  1"23. 

Vrow  Henrica,  The  —  neutral  carrier  of  enemy  property  generally  allowed 
freight,  in  this  case  freight  postponed  to  captor's  law  expenses,  629. 

Vrow  Margaretha,  The  —  bona  fide  transfer  of  property  not  illegal,  but  colorable 
or  fraudulent  transfer  in  transitu  clearly  so.  616. 

War  —  purpose  and  declaration,  461-480  ;  definition,  object,  causes,  kinds,  §  118; 
definition,  object,  rights  acquired  by,  United  States  v.  The  Active,  464 ; 
declaration  of ,  without  declaration,  beginning  of,  §  117;  civil,  date  of  be- 
ginning and  ending  thereof,  The  Protector.  682;  §117;  definition  of,  and 
kinds  of,  Dole  v.  Merchants'  Marine  Insurance  Co.,  470  ;  perfect  and  im- 
perfect kinds  of,  471  n. ;  may  exist  de  facto  without  declaration.  The  Teu- 
tonia,  471  ;  instruments  of,  §  126;  effects  of,  as  between  enemies,  §§  119, 
120;  property  confiscable  in,  §  130;  termination  of,  675-683;  §  168. 

Ware  r.  Hylton  —  debts  due  the  enemy  legally  may  be,  but  from  motives  of 
policy  generally  are  not  confiscated,  485  n. 

Ware  v.  Jones  —  coutract  made  during  civil  war  for  sale  of  property,  real  or 
personal,  to  aid  Confederate  States  held  void,  517. 

Washington  —  Three  rules  of,  714  n. 

Whitney  r.  Robertson  —  treaty  as  law  is  superseded  by  subsequent  treaty  or 
act  of  Congress  inconsistent  therewith,  422. 

Wildenhus'  Case  —  merchant  vessels  subject,  unless  exempt  by  express  treaty, 
to  civil  and  criminal  jurisdiction  of  foreign  port;  French  rule  otherwise, 
225  (227-228). 

William,  Tiie  —  by  rule  of  1756,  neutrals  may  not  trade  directly  between  enemy 
and  his  colonies;  touching  at  neutral  port  to  avoid  penalty  not  permitted, 
848. 

William  iJagalay,  The  —  duty  of  citizen  to  return  home  on  outbreak  of  war, 
565. 


INDEX.  961 

Williams'  Case  —  at  common  law  subject  may  not  change  allegiance  without 
permission  of  state,  372. 

Williams  V.  Marshall  —  license,  to  be  a  protection,  must  be  complied  substan- 
tially with,  530. 

Wilson  r.  Blanco  —  diplomatic  agent  exempt  from  suit  in  third  country, 
whether  going  to  or  returning  from  post,  206. 

Wilson  V.  McNamee  —  merchant  vessels  of  the  United  States  on  the  high  seas 
subject  to  jurisdiction  of  United  States.  329. 

Wolff  t;.  Oxholra —  private  property  in  form  of  debts  due  enemy,  held  not  con- 
fiscable by  usage  of  nations,  496. 

Wunderle  v.  Wunderle  —  treaty  as  law  of  the  land  takes  precedence  of  state 
statute,  414. 

Yrisarri  v.  Clement  —  definition,  nature  and  constituent  elements  of 
statehood,  23. 


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